A Welcome Clog in Rhode Island's School-to-Sheltered-Workshop Pipeline

Smiling womanMarie has a developmental disability. She is employed but not in a competitive workplace. Rather, Marie works in a “sheltered workshop,” a segregated workplace for individuals with intellectual and developmental disabilities. The sheltered workshop has not offered Marie any job training or support that will allow her to move to competitive employment, as she would like to do. Nor has anyone there asked her about her interests or goals. Rather, she was directed to the workshop straight from high school and has spent years there earning about $2 an hour, far below the minimum wage.

Under federal disability and rehabilitation laws, Marie should not be stuck in this situation. The Individuals with Disabilities Education Act—more commonly known as “IDEA”—and the Rehabilitation Act are supposed to effect a smooth transition from high school to targeted employment, with school officials and vocational rehabilitation agencies working together. And the Americans with Disabilities Act (ADA) requires that services for people with disabilities—such as those of vocational rehabilitation agencies—be offered in the most integrated setting that is appropriate. Marie’s long tenure at the sheltered workshop falls far short of these goals.

While Marie is a fictional character for illustrative purposes, in reality, more than 400,000 people like her are working in sheltered workshops across the country. Many of them work there for years after being placed there directly from high school. This path has been called the “school-to-sheltered-workshop pipeline,” echoing the lament of other civil rights advocates about the “school-to-prison pipeline.”

But just this month, the U.S. Department of Justice struck a blow to the sheltered-workshop pipeline in Rhode Island. What began as a Fair Labor Standards Act investigation by the U.S. Department of Labor—the workshop in question sometimes paid its employees less than $1 an hour—turned into a Justice Department investigation into violations of the ADA and IDEA. The Justice Department found a clear pipeline from a local special education program to a sheltered workshop. It also found a broader statewide pattern of segregation: about 80 percent of people receiving such state services were placed in sheltered workshops and similar segregated programs, and only 5 percent of students with developmental disabilities moved from school into jobs in integrated settings.

This month’s agreement between the Justice Department and Rhode Island gives the state 10 years to take specific actions to fix its violations of the ADA and to end the school-to-sheltered-workshop pipeline and unwanted segregated employment for individuals with developmental disabilities. The agreement has been hailed as long-overdue progress and could serve as a nationwide model.

Coincidentally, the current issue of Clearinghouse Review: Journal of Poverty Law and Policy, which has an education law theme, contains an article that dives deeper into this phenomenon. Ronald M. Hager’s article, Stemming the School-to-Sheltered-Workshop Pipeline, looks at the failures of the rehabilitation system to assist students with developmental disabilities as they transition from high school to employment. He lays out in detail how schools and rehabilitation agencies can use a student’s individualized education program (IEP) to make a smooth, holistic transition from school to the world beyond. And he relates the interesting history of the case in Rhode Island that settled last week.

The forthcoming May-June issue of Clearinghouse Review will further explore the challenges facing individuals with disabilities and low income. In anticipation of the issue, the Shriver Center will host a webinar on May 7 looking at alternatives to guardianship for individuals with intellectual and mental health disabilities. Finding less-restrictive alternatives to guardianship, much like ending segregated sheltered workshops, is one more way advocates can work to preserve the autonomy of their clients with disabilities.

 

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Innovative Technology Projects Are Connecting Pro Bono Lawyers with Clients

Books and computerWhether they work in private practice, for nonprofits, or for state or local governments, lawyers have many demands on their time. For lawyers at private companies and law firms interested in pro bono work, the time and effort involved in locating an appropriate pro bono client can be enough to discourage them from doing any pro bono work at all. Fortunately, innovative technology projects, supported by the Legal Services Corporation and others, are making it easier for lawyers to find pro bono clients and for clients to find legal help.

At the national level, Pro Bono Net has been connecting private attorneys with pro bono opportunities since 1999. Now a national nonprofit powerhouse, when Pro Bono Net started, it focused on two practice areas in New York City. Pro Bono Net not only connects lawyers with pro bono clients, it also provides constant support in the form of training events, mentors, and searchable libraries of practice resources. Pro Bono Net’s model has been adopted in 30 states, and many state-specific websites can be reached through the “Regional Sites” button in the top left-hand corner of the Pro Bono Net site.

The Legal Services Corporation (LSC) also recognizes that technological innovation can improve access to justice. LSC supports the use of technology to help low-income litigants through its Technology Initiative Grant (TIG) program. In 2013, the TIG program gave almost $3.4 million to 33 different projects providing a wide variety of services, including “‘legal triage’ tools to guide self-represented individuals through complex legal procedures, online support for pro bono attorneys, and improved access to legal assistance for people in remote areas.” LSC also holds an annual conference focusing on the use of technology in the legal aid community and releases reports on the use of technology to expand access to justice.

Most states have a statewide website for legal aid attorneys, a statewide site for clients, and a statewide site for pro bono attorneys. But attorneys who do not have a connection to a legal aid organization may encounter difficulty learning about pro bono opportunities that match their skills and interests. To make pro bono opportunities more accessible, IllinoisProBono.org, the site for pro bono legal professionals in Illinois, maintains a searchable system of pro bono opportunities throughout the state. This newly updated volunteer opportunity search and internship application system maintained by Illinois Legal Aid Online makes it easier for attorneys, law students, and other legal professionals to find pro bono opportunities, internships, and fellowships online. Volunteers can then apply for the opportunities in which they are interested with one click of the mouse. They can also sign up for upcoming trainings and access free legal resources and continuing legal education videos to support their pro bono work. 

Some web sites that offer ways for attorneys to find pro bono clients with cases in specific practice areas. Immigration Advocates Network maintains an online Pro Bono Resource Center for pro bono attorneys representing low-income immigrants.

Technology not only helps lawyers find pro bono clients, however—the reverse is also true. The internet also helps low-income people find legal help. First, Pro Bono Net also maintains LawHelp.org, which “helps low and moderate-income people find free legal aid programs in their communities, answers to questions about their legal rights, court information, links to social service agencies, and more.” Many state-specific pro bono resource sites also contain information for low-income people seeking legal help. There are also topic-specific sites that provide people with legal guidance in specific areas of the law. Stateside Legal, for example, provides veterans with legal information on a range of topics, including but not limited to benefits, consumer law, and family law. Veterans can also use the site to find legal help in their hometowns. (Stateside Legal was launched with a 2009 TIG grant.) Immigration Advocates Network also maintains a citizenship page that helps people determine their eligibility for citizenship online and answers questions about the naturalization process.

The Tennessee Alliance for Legal Services has put a new spin on providing pro bono services online. The alliance has created a new program, OnlineTNJustice.org, which allows low-income Tennesseans to email lawyers directly with questions about civil legal issues. Before people can participate, they have to answer some screening questions about their age, family composition, income, and the kind of legal problem they are trying solve. People who qualify for the program can post then post their civil legal questions and a volunteer attorney will answer them.  

As the president of the Tennessee Bar Association observes on the Tennessee Alliance for Legal Services’ website, “nearly 70% of Tennesseans living in poverty had a civil legal need in the past year.” Tennessee’s legal aid and legal services attorneys are simply not able to reach every person in need, particularly those people living in rural areas. OnlineTNJustice.org allows Tennessee’s attorneys to close the justice gap and help more people solve their civil legal problems.

Have you had a good experience using technology to find a pro bono opportunity or an answer to a thorny legal problem? We would love to hear about it.  Please contact Clearinghouse Review Senior Attorney Editor Michele Host.

 

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Fixing the Tangled Threads of Poverty and Racism

As the nation commemorates Dr. Martin Luther King, Jr. this weekend, many people will pause to remember how far the United States has come since the Civil Rights Movement of the 1960s and to consider the current state of racial justice in this country. And inevitably that examination of race in America will include a look at poverty. While 14 percent of all U.S. residents and 12 percent of whites and Asian Americans live in poverty, fully 26 percent of African Americans, 27 percent of Native Americans, and 23 percent of Latinos do.

The relationship between race and poverty is complicated, to say the least. To explore these issues in more depth, the Sargent Shriver National Center on Poverty Law has undertaken several initiatives to look expressly at racial justice and poverty.

For instance, the September-October 2013 special issue of Clearinghouse Review: Journal of Poverty Law and Policy delved into the theme of “Pursuing Racial Justice in the 21st Century.” It included articles on:

The lead article in that special issue, Advancing Racial Equity—A Legal Services Imperative by Francisca D. Fajana and Camille D. Holmes, looks particularly at race and poverty and breaks down the question of whether fighting poverty—as legal services programs do—is a proxy for fighting racial injustice. Their article not only expresses their views on the question (that fighting poverty is no substitute for targeting racism), but also it examines the opinions of hundreds of legal services attorneys and allies that they surveyed in the summer of 2013.

Their article prompted the Shriver Center to host a webinar on the question, Are We Full of Contradictions? Legal Aid Programs and Racial Justice Advocacy. In it, Holmes, the Director of Leadership and Race Equity at the National Legal Aid and Defender Association,  discussed the survey and its implications with the Shriver Center’s Vice President of Advocacy, Carol Ashley, and Bill Kennedy, the Managing Attorney of the Sacramento office of Legal Services of Northern California.

The next phase of the Shriver Center’s express focus on racial justice comes in the form of the Racial Justice Training Institute. This seven-month-long training program will begin this year with a class of up to 40 legal aid and public interest lawyers. Its goal is to develop a network of equal justice advocates that will advance a coordinated racial justice advocacy agenda and see race equity as essential to antipoverty work. Its participants will work on critical legal skills along with advocacy and community-building skills. They will use the special racial justice issue of Clearinghouse Review as a resource. The application deadline for the inaugural class of the Racial Justice Training Institute is February 14, 2014.

The problems of poverty and racial injustice are unfortunately not limited to just this one weekend every year. The Shriver Center encourages advocates to examine their antipoverty work and consider whether it is expressly striving for racial justice as well. For us to fulfill Dr. King’s vision, we’ll have to untangle these intertwined issues.

 

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Another Victory for Farm and Ranch Workers in New Mexico

FarmworkerJoe Griego, a worker at a dairy in New Mexico, was gored by a bull as he tried to separate it from the cows he needed to milk. The bull threw Griego in the air and crushed his back and ribs. After a trip to the emergency room and multiple hospital visits, he was left disabled.

Griego had worked ten-hour days, six days a week, earning $65 per day. He had no health insurance or sick leave. After his injury, he fell into deep poverty and tried to rely on charity care and other public assistance, but it was not enough to meet his needs.

Most people injured at work are covered by their state workers’ compensation insurance program. But not Joe Griego. He received only a few weeks of partial pay from his employer. Why? Because New Mexico has historically excluded farm and ranch laborers from its workers’ compensation program. It has done so in spite of the fact that New Mexico’s agricultural workers are some of the poorest of the working poor, making between $7,000 and $18,000 per year with no health insurance, all while performing demanding and dangerous work.

But the prospects for New Mexico’s farm and ranch workers brightened late in 2011 when a legal team that included the Sargent Shriver National Center on Poverty Law won a case in state court that found the exclusion of farm and ranch laborers from the state’s workers’ compensation program violates the equal protection clause of the New Mexico constitution. Gail Evans, the legal director at the New Mexico Center on Law and Poverty and the lead attorney in the case, wrote about this litigation in the January-February 2013 issue of Clearinghouse Review. Her advocacy story, Winning Workers’ Compensation for Farmworkers Through Civil Rights Litigation in State Court, explains the benefits of bringing cases like this one in state court.

Farm and ranch workers in New Mexico claimed another victory last month when the New Mexico Court of Appeals denied the state’s appeal of the 2011 ruling. The appeals court found the appealed issues to be moot and held that the trial court’s decision stands and is binding on the New Mexico Workers’ Compensation Administration.

The plaintiffs in the case were three named individuals (including Joe Griego) and two organizations. It was not a class action. But the court of appeals decision confirms that the relief from the trial court decision will apply across the board as if the plaintiffs had been a class.

As Evans explained in her advocacy story, that decision of the trial court found the exclusion of farm and ranch laborers from workers’ compensation to be unconstitutional. The New Mexico Center on Law and Poverty, the Shriver Center, the National Center for Law and Economic Justice, and Nancy L. Simmons, a local civil rights and farmworker attorney, presented evidence to the court that including farmworkers in workers’ compensation is not administratively impossible because other heavily agricultural states do it. They showed that the agriculture industry’s profit margin would decrease by less than 1 percent if farm and ranch workers were covered by the workers’ compensation insurance program.

In the end, the trial court found it arbitrary that workers who process food are covered under workers’ compensation, while the workers who pick or produce that food are not. That the New Mexico Court of Appeals has let that decision stand is a win for farmworkers. It just may prevent other agricultural laborers from enduring Joe Griego’s fate and save them from having financial insult added to their workplace injuries.


Clearing the Air in Chicago's Englewood Neighborhood

Rail yardThe City of Chicago’s approval of expanded tax-increment-financing industrial districts in the Englewood neighborhood last month probably appeared to be just another routine piece of local business. But behind that vote lay plans to expand a rail yard and the surrounding community’s fight to protect itself from increased air pollution and sickness. 

Chicago’s Englewood neighborhood is 98 percent African American, and 44 percent of its residents live in poverty. It is also home to a 104-acre rail yard where cargo is loaded and unloaded between diesel trucks and trains. Rail yards are notorious for the amount of diesel air pollution they create and the resulting high rates of asthma, cancer, and bronchitis in the communities nearby.

So Englewood residents were understandably concerned when they learned of the rail yard’s plans for a $285 million, 84-acre expansion. A community organization there, Sustainable Englewood, sought legal help to curb the effects of the rail yard expansion. It was represented by the Environmental Advocacy Center at Northwestern University School of Law’s Bluhm Legal Clinic and teamed with another public interest legal organization, the Environmental Law and Policy Center. Debbie Chizewer, an environmental attorney in Chicago, detailed the Englewood community’s efforts in an article in the 2013 special issue of Clearinghouse Review on racial justice.

To facilitate the rail yard expansion in Englewood, the City of Chicago and the rail company Norfolk Southern had reached a proposed agreement whereby Norfolk Southern would buy 105 vacant city-owned lots and pay an additional $3 million for road and other improvements generally related to the rail yard expansion. But first, the City Council had to pass ordinances for the public land sale to go through. Sustainable Englewood saw an opportunity to apply some pressure to reduce the impacts of the rail yard expansion.

Sustainable Englewood and its partners held a press conference in February 2013 at City Hall. Residents and environmentalists talked about Englewood’s high childhood asthma rate and demanded emission controls on the diesel trucks entering the rail yard. This strategy worked, and the City Council delayed approval of the land sale. Sustainable Englewood applied more pressure in August to delay the City Plan Commission’s approval of a tax-increment-financing district change from residential to industrial. The group presented its procedural and substantive environmental concerns, and its efforts paid off with yet another delay from the City.

These delays were just what the community team needed to negotiate a fair deal with the City of Chicago and Norfolk Southern to secure additional protections for the neighborhood near the expanded rail yard. The deal means:

  • Norfolk Southern will install modern pollution control equipment on trucks and clean engines or diesel filters on lift equipment;
  • Chicago and Norfolk Southern will work together on truck congestion relief and pollution reduction;
  • Norfolk Southern will pay $1 million for sustainability projects in Englewood and another $1 million for job training in Englewood;
  • Chicago will convert elevated rail track to green space.

After Chicago and Norfolk Southern agreed to these concessions to the Englewood community, the City of Chicago approved the expanded tax-increment-financing districts on November 13, 2013.

In addition to chronicling these efforts of Englewood residents to curb the harms of a rail yard expansion, Debbie Chizewer’s Clearinghouse Review article, Laying Tracks to Environmental Justice, discusses two communities in southern California and the litigation and administrative strategies they used to curb the harms of rail yard expansion proposals there. Communities around the country can look to these efforts as examples of how to protect a community’s health and environment in the face of a rail yard expansion or other environmental justice concerns.

American Human Rights Advocates Submit Shadow Reports for 2013 United Nations Review

Shadows beyond fenceThe traffic has gone back to normal near the United Nations now that the General Assembly is no longer in session, but that does not mean that human rights advocates are done with their work. Many lawyers working on human rights issues—domestically or internationally—are preparing for the Human Rights Committee’s review of the U.S. report on American compliance with the International Covenant on Civil and Political Rights (ICCPR). This treaty requires countries that have ratified it to protect their citizens’ political and civil rights. In particular, the treaty contains specific prescriptions about equality; the right to a fair trial; the right to be free from torture and slavery; free speech; and many other important rights. The review of American compliance with the ICCPR will take place on October 17 and 18 in Geneva, Switzerland.

You might be wondering—how does a European meeting of politicians and human rights lawyers relate to domestic activists working on issues like education, the right to a fair trial, domestic violence, or sex trafficking? Two words: shadow reporting. Once a country has ratified a treaty, it has an ongoing obligation to report on its compliance with that treaty’s obligations. The ICCPR requires countries to submit their reports every four years. While the Human Rights Committee reviews each country’s report, nongovernmental organizations (NGOs) are reviewing these reports as well. The NGOs have the right to submit reports of their own that criticize the country’s progress on relevant issues, point out inaccuracies, and suggest language for the committee to use in its official findings, known as Concluding Observations. NGOs also have the right to attend the Human Rights Committee’s meetings and to bring witnesses to give live testimony.    

For example, as Eric Tars of the National Center on Homelessness and Poverty described in Clearinghouse Review, in preparation for the 2008 review of U.S. compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, advocates from across the United States joined together and prepared a 600-page shadow report for the Committee on the Elimination of Racial Discrimination. The result? Concluding Observations drawn from the advocates’ report presented a detailed critique of U.S. policies and actions. In turn, the advocates’ participation in and effect on the process generated massive media attention that the advocates were then able to leverage to help their clients.

Across America, advocacy organizations have seized the opportunity to submit shadow reports to the Human Rights Committee for this year’s ICCPR review. For example:

Clearinghouse Review applauds these organizations’ participation in the U.N. treaty review process. As Gillian MacNaughton observed in Clearinghouse Review, “the more that human rights are used in U.S. legal and policy advocacy work, the more they are integrated into U.S. laws and policies and available to be drawn on when needed.” The 2012 special issue of Clearinghouse Review, Human Rights: A New (and Old) Way to Secure Justice, was devoted to the intersection of international human rights and poverty law. Moreover, we regularly publish articles on topics relevant to the ICCPR review process, such as Jill P. Rawal, Stephanie Kay Richard, and Aradhana Tiwari’s recent article on safe harbor laws for child sex-trafficking victims. 

Will you or someone from your organization be going to Geneva this month?  Clearinghouse Review would love to hear from you. Please contact Senior Attorney Editor Michele Host. (Can’t make it to Geneva but want to follow the review? A live webcast should be available at: http://www.treatybodywebcast.org/.) 

Editor's Note: Because of the U.S. government shutdown, the Human Rights Committee has postponed the U.S. review until March 2014. You can read the committee's official statement here.

 

 

Clearinghouse Review Covers Workers' Rights on Labor Day and Every Day

Hector OrtizThis year, Labor Day falls only days after the 50th anniversary of the March on Washington for Jobs and Freedom. These two important days prompt us to think about the central role of employment in our lives. We need jobs not only to put food on our tables and pay our rent, but for self-respect, community, security, and personal growth. Jobs are often where we learn, make friends, and, most importantly, help our fellow citizens. 

But Americans don’t need just any jobs. As fast-food workers from around the country have shown us over the past few months, Americans need jobs that provide a living wage. As home health care workers continue to demand, Americans need jobs that include protections under the Fair Labor Standards Act. Americans need jobs where they will not be discriminated against on the basis of race, national origin, religion, gender, age, or sexual orientation.

This year and every year, Clearinghouse Review: Journal of Poverty Law and Policy has published advocacy stories and articles that can help advocates protect their clients in the workplace. In our May-June issue, we published an advocacy story by attorneys from Charlottesville’s Legal Aid Justice Center describing their legal campaign to improve conditions for migrant tree planters. This effort, which lasted more than a decade, involved collaboration by several public interest organizations and multiple class action lawsuits. Reading about the ins and outs of the campaign for pinero (tree planter) justice is instructive for any attorney interested in the H-2B visa program or class action litigation. 

Earlier in the year, we published an advocacy story about how a group of determined advocates won a lawsuit seeking to include New Mexico’s farm and ranch laborers in the New Mexico Workers’ Compensation Act. While the work in the New Mexico case is not complete, the New Mexico Center on Law and Poverty’s advocacy story is a must-read for any employment lawyer considering a trip to state court to vindicate a client’s civil rights. 

The challenges facing women in the workplace is a topic that Clearinghouse Review has examined repeatedly over the years, and last year was no exception. In January-February 2013, the Review published an overview of pregnancy discrimination law that provides practical advice for attorneys trying to keep working women on the job and out of poverty. In the same issue, we examined the employment challenges facing people with criminal records. Denying employment to people with criminal records may violate Title VII of the Civil Rights Act, and our article discusses the Equal Employment Opportunity Commission’s guidance on this issue, as well as additional protections offered by the Fair Credit Reporting Act and state and local policies that protect the employment rights of people with criminal records. Our article on the federal black lung benefits program is useful not only to attorneys representing coal miners, but to any advocate grappling with complex medical evidence or administrative appeals. And our article on the passage and enforcement of Maryland’s Workplace Fraud Act will prompt advocates to mull over the misclassification of workers as independent contractors and the consequences this misclassification can pose for workers, their families, and their communities.

On Labor Day, we pause and celebrate the achievements of the American workerClearinghouse Review is committed to helping American workers achieve by helping advocates stay informed about important developments in labor and employment law. Clearinghouse Review also provides advocates with a forum to share their own stories by writing about their work. If you have an article or advocacy story you’d like to write, please contact Senior Attorney Editor Michele Host.

 

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The March on Washington and the War on Poverty: 50-Year Anniversaries Remind Us of Need for Closer Coordination

The 50th anniversary of the March on Washington is a landmark moment for both civil rights and anti-poverty legal advocates. Next January’s 50th anniversary of the declaration of the War on Poverty is another. During the last 50 years, it has become clear that civil rights and anti-poverty advocates have worked side by side but often not arm in arm. Lawyers in anti-poverty work and those in civil rights work often seem to inhabit friendly but separate worlds. Some legal aid advocates, whose mission is to represent people in poverty, believe poverty is the key to ending racial inequities, while some civil rights advocates believe that race is a prime factor that causes and perpetuates poverty. These are not inconsistent notions. In fact, the potential for a powerful combination of forces seems clear. Moreover, the courts’ apparent retreat on racial justice and politicians’ unwillingness to confront poverty make both groups’ work difficult and present another reason for joining forces. Creating more partnerships across the civil rights and legal aid communities will serve to strengthen outcomes for low-income families and communities of color and is a perfect way to honor the 50th anniversary of the March on Washington and declaration of the War on Poverty.

The Shriver Center has always supported civil rights initiatives, but we too have partially fallen victim to the silo effect as it relates to civil right and anti-poverty work. The Shriver Center often serves as a coalition partner with civil rights organizations, and we bring a good share of fair housing cases, but we certainly could engage in more joint cases and causes with civil rights organizations. The authors of this blog, John Bouman, with the Shriver Center for 17 years and current Shriver Center President, and Carol Ashley, a civil rights education equity lawyer in private practice for 18 years and now the Shriver Center Vice President of Advocacy, did their anti-poverty and civil rights work with Chicago offices mere blocks apart without crossing paths until 2012. We fear that our situation is not atypical and that many anti-poverty lawyers and civil rights counterparts could engage in more direct work with each other.

Although reasons for the separate worlds may be benign, such as legal aid organizations’ inability to bring class actions under Legal Services Corporation guidelines, we challenge legal aid advocates to seek out opportunities to partner with the civil rights advocates within their communities as this year of civil rights milestones continues. As we approach next year’s 50th anniversary of the War on Poverty, we, in turn, challenge civil rights advocates to reach out to their anti-poverty colleagues to find ways to work together.

Although we often view the March on Washington as one for civil rights, it was billed as the March on Washington for Jobs and Freedom. This should remind us all that there is little dividing civil rights activism and economic empowerment or anti-poverty and civil rights legal advocacy.

John Bouman, President
Carol Ashley, Vice President of Advocacy

Working in partnership with civil rights organizations, the Sargent Shriver Center will launch a Racial Justice Training Institute for legal aid attorneys in 2014.

 

 

Welfare Reform Anniversary Rolls Around Again: How Much Does Race Explain?

The  week before the 50th anniversary on August 28 of the March on Washington for Jobs and Freedom—where hundreds of thousands were moved by Rev. Martin Luther King, Jr.’s soaring “I Have a Dream” speech—we passed another, less-heralded anniversary. August 22 marked 17 years since former President Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act, commonly known as welfare reform. That legislation created a new federal cash assistance program for families with children called Temporary Assistance for Needy Families, or TANF, to replace Aid to Families with Dependent Children (AFDC), a program that dated back to the New Deal. Much of the commentary on the anniversary of the March on Washington has pondered the question: “How far have we come?” In considering the answer, a look at 17 years of TANF is instructive.

On the surface the two anniversaries would seem to have little connection. But as we celebrate the nation’s progress since the days of blatant legal segregation, while we lament what seem to be intractable racial disparities in any number of measures of well-being—prominent among these wealth and income—we might consider what welfare policy has to tell us about the state of racial justice.

An article by Mary R. Mannix and Henry Freedman of the National Center on Law and Economic Justice, to be published in Clearinghouse Review’s upcoming September-October special issue on pursuing racial justice, delves into this dynamic. Social scientists are increasingly studying links between U.S. attitudes toward race and welfare policy; Mannix and Freedman report that “multiple studies have found that states with larger proportions of black recipients are more likely to have stricter welfare policies and that caseworkers … are more likely to sanction blacks than whites for similar non-compliance with program rules.” They also note that, while state-level harsh policies correlate with the proportion of program beneficiaries who are black, it is at the individual caseworker level where disparate treatment and disproportionate sanctioning primarily play out. Here again, states with larger proportions of people of color among their recipient populations have allowed far greater discretion on the part of front-line caseworkers. The effect of this greater discretion, in combination with the implicit bias being documented through neuroscience, is greater case closures and benefit reductions for people of color.

Of course, welfare policy has long been strongly racialized. And in the last 50 years media coverage of “urban poverty” has enhanced inaccurate stereotypes of “the poor”—particularly the stereotype of laziness and unwillingness to engage in paid work—setting the stage for the “work first” policies that welfare reform prioritized over helping families escape poverty.

Conventional wisdom casts “welfare reform” as a great success, and its supporters mock those who opposed the law’s passage on the grounds that it was an ill-conceived policy that would drive many families into deeper poverty. To be sure, immediately after the legislation took effect during the economic boom of the ‘90s, the welfare rolls declined sharply—falling by 60 percent between 1996 and 2012. But after 17 years, a program whose first purpose is to help needy families is doing so less and less. In 1996 AFDC helped more than two-thirds of poor families; by 2011, Great Recession or no, TANF helped barely more than a quarter. (Even in 1996 the TANF-to-poverty ratio was historically low; in the early 1970s, four of five poor children were helped by TANF’s predecessor program.)

How can it be that a program to help needy families appears to do the opposite, helping fewer and fewer now, in the throes of a stagnant economy? Among myriad answers:  benefits are time-limited; access is restricted, with no legal entitlement; states may spend federal TANF dollars many purposes other than cash aid and many states do. But also among the answers are the broad state discretion over eligibility rules and extensive use of sanctions—answers that circle back around to the largely unspoken but lasting role of race in welfare policy and in anti-poverty policy generally.

Mannix and Freedman write that “[t]he continued racialization of TANF cries out for a response from advocates ….” They encourage advocates to understand the racial undercurrents of welfare policy and then take action to begin “removing the scourge of racial disparities in welfare administration.”

Clearinghouse Review’s upcoming special issue on racial justice aims to enhance advocates’ capacities to help their clients fight this scourge on multiple fronts, in welfare administration and beyond. This week the nation is contemplating answers to “How far have we come?” A deeper understanding of the racial undercurrents permeating anti-poverty policy promises to hasten the remaining portion of the journey.

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Happy Birthday to the Americans with Disabilities Act

Stand Up for People with DisabilitiesToday is the twenty-third anniversary of the Americans with Disabilities Act (ADA). As the U.S. Department of Justice’s Civil Rights Division states, this “equal opportunity law” for people with disabilities “prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life—to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services.”

Twenty-three years after its passage, the ADA continues to be monumentally important for the 56 million Americans living with disabilities. While people with disabilities have won major victories in the courts under the ADA—perhaps most famously in Olmstead v. L.C.the states have not always integrated people with disabilities into the community quickly, and people with disabilities continue to face challenges in many aspects of their lives. Surprisingly, obtaining decent preventive health care often poses problems for people with disabilities. Patients with disabilities are in poorer health than the general population and often receive inadequate preventive care. Indeed, in a recent, shocking study, one out of five medical offices refused to see a fictitious patient who “could not get out of a wheelchair without significant assistance, weighed roughly 200 pounds and needed additional, specialized medical evaluation.” The medical staff at these offices cited a lack of accessibility or a lack of specialized equipment for their refusal to treat the disabled patient. Moreover, giving the patient an appointment was no guarantee that the doctor’s office would provide appropriate care. Those offices that did agree to see the patient usually admitted, when pressed, that they had no plan for how they would accommodate the patient when he or she arrived.

Education is also a difficult area for people with disabilities; as Andrew Solomon writes in Far from the Tree: Parents, Children and the Search for Identity, “today, American children with disabilities are four times more likely than nondisabled ones to have less than a ninth-grade education.” This is true, in part, because students with disabilities are subjected to school discipline at a much higher rate than nondisabled students. People with disabilities also encounter problems voting, finding accessible homes, retaining custody of their children, and being hired for jobs. Disappointingly, the U.S. Senate still has not ratified the Convention on the Rights of People with Disabilities, an international treaty ratified by 132 countries that would recognize that people with disabilities everywhere deserve the ADA’s protections.

Clearinghouse Review has long been committed to spreading the word about how advocates can use the ADA to improve their clients’ lives. In 2007, the Review published an entire special issue titled Legal Recourse for People with Disabilities.  That landmark issue included articles about the history of disability rights law, using the ADA on behalf of Social Security Disability beneficiaries, Medicaid managed care, using disability law on behalf of seniors, and more. 

Fittingly enough, the Review’s forthcoming July-August 2013 issue contains several articles that will help attorneys keep their ADA knowledge current. Authors from Equip for Equality have written two informative articles about the 2008 ADA Amendments Act, one on the specific areas where the law clarifies the original intent of the ADA and benefits people with disabilities and the other on the ADA Amendments Act and learning disabilities. (We’re also featuring an interview with Equip for Equality’s Barry Taylor, and Daniel Hochbaum’s powerful advocacy story about Equip for Equality’s Special Education Clinic is already online at our website.) And lawyers from New York Lawyers for the Public Interest provide a practical guide to how law offices can implement practices that will improve their representation of clients and communities with limited English proficiency or disabilities.

The ADA has profoundly affected the ability of people with disabilities to participate fully in the community. As it has over the past 23 years Clearinghouse Review will continue to cover disability issues and legal recourse for advancing the interests of people with disabilties.

Medical-Legal Partnerships: On the "Bleeding Edge" of Technological Innovation

Across the country, doctors’ offices and hospitals are adapting to new technology. Medical-legal partnerships are no different. Medical-legal partnerships are projects that target the nonmedical sources of health problems such as asthma, diabetes, and depression by training medical professionals to identify legal issues and providing lawyers ready to address patients’ legal needs.

In Louisville, Kentucky, the Legal Aid Society of Louisville and Doctors and Lawyers for Kids, Louisville’s medical-legal partnership, have developed a way to use tablet technology to identify pediatric patients who might need legal help. Called an automated legal needs screening tool, this advanced use of technology tries to help families stay healthy by preventing people from being evicted, making sure children are getting the services they need in school, and helping families pay their bills and apply for benefits.

Funded by a Technology Initiative Grant from the Legal Services Corporation, the automated legal needs screening tool is currently being tested at the University of Louisville’s Pediatrics Children & Youth Clinic. The tool has several components:

  • The “law and health survey,” which patients' parents or guardians complete on tablets;
  • An “alert” function that electronically notifies medical-legal partnership staff when a survey response flags a possible health-related legal need;
  • A “resource” function that lets parents or guardians ask for information about community resources, based upon their survey answers; and
  • A reporting function that allows the medical-legal partnership staff to gather data.

When a patient’s parent (or guardian) begins the survey, the survey tells the parent that if she or he responds in certain ways, the survey will ask for a name and phone number, or an email address. The survey then assures parents that their responses to the survey will be kept confidential.

Next, the survey-taker answers a set of yes or no questions designed to identify potential legal problems. The survey uses “question branching,” which means that the response to one question prompts the next question posed by the survey. One of the first questions the survey asks is: “Are you having any problems with your housing?” If the parent or guardian clicks “Yes,” the survey asks a series of follow-up questions about whether the survey-taker rents or owns his or her home, if the home is in good condition, if the utility bills have been paid, and whether the family is at risk of being evicted. Depending on the answers given, the survey-taker might be asked if he or she would like to speak to an attorney. For example, if a survey-taker responds that he or she is having problems with housing, the survey asks if he or she rents her home.  If the person clicks “Yes,” the survey asks:

Do you have any of the following problems?

  • owner not making repairs
  • heat or air conditioning not working
  • hard to keep mold, buts or rodents away
  • other unsafe conditions

If the survey-taker clicks that “it is hard to keep mold, bugs, or rodents away,” as well as that he or she is at risk of being evicted, the survey will ask if the person would like an attorney to call. The survey also emphasizes that “our services are free.” If the survey-taker responds “No” to the offer of legal services, the survey offers the medical-legal partnership’s phone number and states that the person can call in the future for help, and notes “you can also ask your doctor to refer you.” The survey also includes questions about educational services and family violence that operate in a similar way.

The survey can be taken in English or Spanish. To prevent confusion or distractions, the tablet cannot be used for any other purpose than taking the survey.

Like the Louisville medical-legal partnership, many of the medical-legal partnerships currently operating around the country focus on children. The model can be extremely successful in other contexts as well, however. The New York Times recently profiled the Medical-Legal Partnership for Seniors, a clinic operated jointly by the University of California Hastings College of the Law and the University of California, San Francisco. In the clinic, when a doctor working with an elderly patient realizes he or she has an unmet legal need, the doctor advises the patient to “Go down the hall and see my friends at U.C. Hastings for help.” The law students then help the patient apply for public benefits, obtain home health assistance, write an advance directive, or address whatever legal problem is having a negative impact on his or her health. The students even make house calls.

If you are interested in learning more about how medical-legal partnerships are using technology to help low-income patients, you can contact the National Center for Medical-Legal Partnership. You can also learn more about medical legal partnerships more generally by reading Medical-Legal Partnership: Evolution or Revolution?, co-authored by medical-legal partnership experts from across the country. For a closer look at how one medical-legal partnership helped alleviate the legal needs of low-income kindergartners, read Lucas Caldwell-McMillan’s advocacy story about his medical-legal partnership in St. Louis. And to see how the medical-legal partnership model can work in a mental health context, look at MFY Legal Services’ Mental Health-Legal Partnership.

Bills of Rights for America's Homeless

Homeless tentAround the country, advocates for low-income Americans are incorporating international human rights norms into their daily work. This spring, in both Illinois and California, advocates for homeless people are on the verge of having their elected representatives pass legislation that would guarantee homeless people certain basic rights. These efforts are part of a positive recent trend. Last summer, Rhode Island became the first state to clearly define homeless people’s rights through the passage of a homeless bill of rights. The state legislatures in Vermont, Oregon, Connecticut, and Missouri have also introduced bills to protect homeless residents’ rights. 

Last week, the Illinois House passed the Bill of Rights for the Homeless. Advocated for by the Chicago Coalition for the Homeless (and supported by the Shriver Center), the bill would “protect people who experience the loss of housing from discrimination by creating a list of basic rights. These rights include the right to maintain gainful employment, to access emergency medical care, to access public spaces and transit systems, the right to privacy of personal property, records, and information, and the right to vote on the same basis as others.” Notably, under the terms of the Illinois bill, these rights could not be denied because of housing status; if they were violated because someone was homeless, that person could sue for damages.

California’s Homeless Person’s Bill of Rights and Fairness Act, formally known as Assembly Bill 5, recently passed an important committee hearing and moved one step closer to a final vote.  Although it targets the same problem as the Illinois legislation, the California bill differs from the Illinois bill in many respects. The California bill is significantly longer than the Illinois legislation and contains protections for people who assist homeless citizens. The California bill also requires local law enforcement agencies to provide information to the attorney general and the public about their enforcement of ordinances against homeless persons and compliance with the act. Under the California bill, the California Department of Public Health would be required to create “health and hygiene centers” for homeless residents. Like the Illinois bill, the California bill would allow civil suits and damages for people whose rights are violated.

As Greg Kaufman observes in his blog at The Nation, it would be particularly meaningful for California’s homeless population to have a clear statement of their rights. In California, Kaufman writes, “[t]here are now approximately 160,000 men, women and children who experience homelessness … on a daily basis, about 20 percent of the nation’s total homeless population. The state ranks second worst in the number of homeless children, and third worst in the percentage of children who are homeless.” 

Bills of rights for the homeless have opponents, however. The California Chamber of Commerce labeled the California bill a “job killer” because it supposedly imposes “costly and unreasonable mandates on employers.” Other Californians are concerned about how much the health and hygiene centers could cost, and the time and money that law enforcement would need to devote to the bill’s reporting requirements. In Illinois, by contrast, criticism of the Bill of Rights for the Homeless focused on the supposed potential for voter fraud.

Both the Illinois bill and the California bill are still moving through their state legislatures. The California bill is scheduled to go before the Appropriations Committee shortly, and the Illinois bill has been returned to the Illinois Senate for a vote on an amendment. Even if the bills pass, their supporters’ work will not end. As the Rhode Island Coalition for the Homeless observed:

“The Homeless Bill of Rights hasn’t changed conditions overnight. Ensuring that agencies are complying with the new rules is difficult. Committees have been established to ensure that the law is implemented, but of course, law or no law, harassment and discrimination continue.”

No matter what happens to the Illinois and California bills, however, they have prompted legislators to give serious consideration to the issues facing homeless people—and to use human rights language when doing so. As the Illinois bill recognizes in its statement of legislative intent:

“[N]o person should suffer unnecessarily from cold or hunger, be deprived of shelter or the basic rights incident to shelter, or be subject to unfair discrimination based on his or her homeless status. At the present time, many persons have been rendered homeless as a result of economic hardship, a severe shortage of safe and affordable housing, and a shrinking social safety net.”

To learn more about how you and your colleagues can use human rights principles in your work, consult Clearinghouse Review’s 2011 special issue, Human Rights: A New (and Old) Way to Secure Justice.

Microlending: Not Just for The Rest of the World

CashThe word “microlending” makes most of us think about faraway places. Kenya. The Philippines.  Peru. And that perception would have been justified just a few years ago. 

But not anymore.

As the Shriver Center’s 2012 Poverty Scorecard makes abundantly clear, America desperately needs innovative solutions to poverty. For low-income Americans whose lives could be improved by small amounts of capital to start or improve a small business, microlending might be just what they need.

Microlending was born in Bangladesh, where an economics professor named Muhammad Yunus started making small loans to poor women in the 1970s. Yunus focused on women in rural areas because they had little or no access to traditional banks, and because he found that women were more likely to spend the money on their businesses or their families than men were. Yunus went on to found Grameen Bank. Today, in Bangladesh, “the Grameen Bank has 8.4 million borrowers, 96 percent women.” In 2006, Yunus and Grameen won the Nobel Peace Prize.

Yunus’s idea has spread far beyond Bangladesh.

A major player in microlending’s growth across the globe has been Kiva. Kiva is an online platform that allows individuals or organizations to make small loans (in $25 increments) to borrowers around the world who do not have access to traditional banking services. Kiva lenders can choose to support any kind of small enterprise—from furniture-making to farming to crafts. Kiva does not make its loans directly. Instead, Kiva sends the money directly to local microfinance institutions (MFIs). MFIs are local banks, credit unions, and other organizations who then interview and select the individual borrowers that receive Kiva funds.

A major part of Kiva’s success is that it allows lenders to feel personally connected to borrowers. Lenders read profiles of individual borrowers on Kiva’s website and can decide whether they would rather lend to a farmer in Lagodekhi, Georgia, who would like to purchase a car to drive as a taxi, or an entrepreneur in Medellín, Colombia, who wants to purchase more merchandise for her small business selling pet supplies. Notably, lenders can also evaluate the strength of the MFI involved in the loan. Each MFI that Kiva works with has a “risk rating,” and Kiva also gives “social performance badges” based on the MFIs’ success in seven key areas. Most importantly, Kiva works. As of April 24, 2013, Kiva’s repayment rate was 99 percent.

In 2009, Kiva started making loans to U.S. borrowers in addition to those it was making  in developing countries. Although some longtime Kiva users formed a new lending group, called Pissed Off Kiva Lenders, because they felt that Kiva’s mission should remain focused on developing countries, Kiva (and most of its lenders) recognized that there are plenty of low-income people in the United States without access to banking services who need help.

As Kristina Shevory wrote for the New York Times back in 2010, the one-two punch of tight credit and the recession has made microfinance a very appealing option for American borrowers. Shevory describes a San Jose, California, hot-dog stand owner who would have lost her business without the $6,500 she borrowed from Kiva at 6% interest. She had been rejected by several San Jose banks when she applied for a conventional loan.

Moreover, in the wake of the foreclosure crisis, microlending programs’ traditional focus on financial education is particularly important for Americans. Many MFIs require borrowers to take classes in financial literacy, and many also offer optional classes on topics ranging from HIV/AIDS awareness to domestic violence prevention.

Microlending is not an answer to every problem. As discussed in the impeccably researched and frequently hilarious book, The International Bank of Bob, which documents the author’s travels to meet Kiva borrowers, the growth of the microlending industry has led to some abuses. In places like Andhra Pradesh, India, a few MFIs that began focusing on profits issued loans with extremely high interest rates and gave individual agents bonuses to sign up high numbers of clients. The result? Borrowers receiving loans that they could not repay. Grameen Bank itself has also had problems, with the Bangladeshi government pushing Yunus out of his job as head of the bank in 2011 and repeatedly trying to malign Yunus and to gain control over Grameen’s assets.

The good news is that microlending organizations have learned from the Andhra Pradesh crisis and added safeguards that make microlending safer. For example, a group of microfinance leaders formed The Smart Campaign to protect microlending clients and keep the industry “both socially focused and financially sound.” More than 1,000 MFIs have endorsed the campaign’s Client Protection Principles, and earlier this year the campaign began a new certification program.

In the United States, federal and state governments are continuing to recognize the potential of microlending. As Shevory wrote in 2010, the economic stimulus bill gave $54 billion to the Small Business Administration for “lending and technical assistance to microlenders.” Now, the SBA’s microloan program provides loans of up to $50,000 to “help small businesses and certain not-for-profit childcare centers start up and expand.” Like Kiva, the SBA does not administer its loans directly; prospective borrowers must apply through SBA-approved intermediaries. The U.S. Department of Agriculture also began a microloan program for young and beginning farmers earlier this year, signaling that more agencies may follow this path.

Several cities have created their own microlending programs. New York City’s NYC Capital Access Loan Guaranty Program is a public-private partnership that assists small businesses “experiencing difficulty accessing conventional bank loans to obtain loans and lines of credit up to $250,000 for working capital, leasehold improvements, and equipment purchases.” Detroit, Michigan; Reading, Pennsylvania; and Stockton, California also administer microloan programs for small businesses.

One of the 2012 Poverty Scorecard’s key findings was that “[i]n 2012, Congress did virtually nothing to advance justice or opportunity for the 46 million people living in poverty in the U.S.”  Going forward, microlending may be an anti-poverty tool that both private citizens and the government can use to help low-income Americans succeed.

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When Custody and Disability Intersect for Native American Families

Many Americans had probably never heard of the Indian Child Welfare Act until last month when the U.S. Supreme Court heard oral arguments in the emotional case of Adoptive Couple v. Baby Girl. But the Indian Child Welfare Act has been on the books since 1978, when about one-third of Native American children were being removed from their homes and placed with non-Native families. This federal law works to keep Native American families and tribes intact by setting higher evidentiary and procedural standards for state court proceedings that seek to remove Native American children from their families. The Act also supports reuniting Native American parents with their children.

As Ella Callow, the legal director of the National Center for Parents with Disabilities and Their Families, explains in the current issue of Clearinghouse Review: Journal of Poverty Law and Policy, the protections offered by the Indian Child Welfare Act are in danger of being undermined. The threat, Callow asserts, comes from discrimination against people with disabilities. Both Native Americans and parents with disabilities have a long history of losing custody of their children. (Parents with intellectual disabilities lose custody of their children 40-80 percent of the time, while parents with psychiatric disabilities lose custody at a rate of 70-80 percent.) Given that Native Americans have a disability rate of 27 percent, the combination of ethnic and disability discrimination poses a real threat to Native families.

Attorneys who practice under the Indian Child Welfare Act must make sure that disability discrimination is not working an end-run around the Act’s protections for Native American families. Callow offers the following examples in her article, “The Indian Child Welfare Act: Intersections with Disability and the Americans with Disabilities Act”:

  • Parental disability is a valid basis for removing a child and terminating the disabled parent’s parental rights in thirty-seven states—including most of the ten states with significant Native American populations. The Indian Child Welfare Act does not change these laws but does require better evidence from the state before it can remove a Native American child or terminate parental rights.
  • The Indian Child Welfare Act gives priority to extended family members when placing a child who is no longer in parental custody. But advocates should take care that neither the child’s nor the extended family member’s disability is being used to get around this preference.
  • Normally federal courts cannot review state court decisions—such as those made in child custody cases—even when disability discrimination has reared its ugly head. The Indian Child Welfare Act, however, offers a path to federal court review if the issue can be framed as the state’s failure to take “active efforts” to provide remedial services or rehabilitation programs to prevent the breakup of a Native American family.
  • Some states “bypass” the usual procedure for denying reunification services to parents with mental disabilities. This bypass—such as allowing only two medical professionals to agree that the parent could not care for the child in twelve months, even with services—should not be permitted under the Indian Child Welfare Act, but advocates must remain vigilant.

While the wrenching facts of Adoptive Couple v. Baby Girl may cause some people to look askance at the Indian Child Welfare Act, Callow’s article shows its real potential to protect Native American families and tribes even when custody becomes intertwined with disability.

 

 

Expecting a Baby, Not a Pink Slip

Pink slipA cashier in New York, a firefighter in Michigan, a shelf-stocker in Indiana, a restaurant worker in Washington, D.C., a train conductor in Mississippi: all real-life examples of pregnant women who were denied minor accommodations at work and suffered negative health or employment consequences as a result.

How does this happen? The intersection of disability and civil rights laws leaves a gap big enough for pregnant women who need temporary workplace accommodations to slip through. They are left vulnerable to harsh consequences at work, and many must choose between their health and their jobs—if they are given a choice at all and not fired outright.

Often the women who face the most challenges in securing workplace accommodations for pregnancy—such as lifting restrictions or more frequent bathroom breaks—are the very women who most need to continue to earn income to support their growing families: those in low-wage jobs. Pregnancy discrimination at work is not just a question of fairness; it’s a matter of economic security for families across the country.

While a few federal laws—such as the Pregnancy Discrimination Act, the Americans with Disabilities Act Amendments ActTitle VII, and the Family and Medical Leave Act—offer some relief to employed pregnant women, the need for temporary reasonable accommodations remains. Some state and local laws offer stronger protections.

Elizabeth Gedmark, a law fellow at A Better Balancesurveys this legal landscape in the January-February 2013 issue of Clearinghouse Review: Journal of Poverty Law and Policy. She explains the strengths and weaknesses of these laws, offers practice tips to attorneys who do not focus on employment law, and highlights federal, state, and local efforts to protect pregnant women at work.

Gedmark’s article comes at a good time, as discrimination against pregnant women in the workplace is garnering more attention. For example, in his January State of the State address, New York governor Andrew Cuomo announced a ten-point Women’s Equality Agenda that includes “stop[ping] pregnancy discrimination once and for all.”It aims to require employers to provide reasonable accommodations for pregnancy-related conditions.

Then in February, the Maryland General Assembly began to consider SB 784, Reasonable Accommodation for Disabilities Due to Pregnancy. Recently, the Judicial Proceedings Committee issued a favorable report on the bill.

Maine followed suit in March by considering HP 581, a bill that would amend the state’s Human Rights Act to require covered employers to give pregnant women the same reasonable accommodations that they would provide a qualified individual with a disability.

Is your state or city joining the movement to keep pregnant women healthy and employed? Let us hear about it either in the comments below or by email.

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On Gideon v. Wainwright's 50th Anniversary, What About the Civil Side?

GavelToday marks fifty years since the U.S. Supreme Court held, in Gideon v. Wainwright, that anyone charged with a felony and too poor to hire a lawyer has a constitutional right to counsel at no cost. The Court subsequently expanded the right to a broader range of defendants, including anyone charged with a misdemeanor that could lead to jail time. Indigent defense systems expanded dramatically. Henry Fonda starred in the movie.

The anniversary of Gideon has been receiving a good deal of attention from mainstream media, the blogosphere, and the advocacy community, and much of the coverage suggests that since the decision things have gone downhill. “The Right to Counsel:  Badly Battered at 50” reads the headline of The New York Times headlines editorial, while The Atlantic weighs in with “How Americans Lost the Right to Counsel , 50 Years After ‘Gideon.’”

Is this pessimism warranted? To be sure, much of Gideon’s promise remains unfulfilled. Not surprisingly, the great majority of criminal defendants are too poor to hire their own lawyers, and the quality of the assigned defenders who represent these defendants varies widely, with impossible caseloads the primary cause of inadequate representation. A 2012 report by the Brennan Center for Justice found that public defenders spend an average of six minutes per case at arraignments, where charges are often disposed of with guilty pleas. Some defendants are never assigned counsel at all. As budgets contract at all levels of government, indigent defense caseloads have grown far beyond what ethical standards allow. Some defender programs have seen no alternative to refusing to take new cases.

But the principle enshrined in the Gideon decision—that the Constitution guarantees at least the semblance of legal counsel before the state may incarcerate, even for a short period, someone charged with a criminal offense—remains intact and largely unquestioned. The principle may be battered in practice. The indigent defense system may cry out for drastic overhaul. But the system need not be created from scratch.

What of the civil side of the courthouse? What of parents threatened with permanent loss of custody of their children, too poor to hire counsel and forced to represent themselves against an opposing party who can pay a lawyer? What of those who face loss of a home due to botched procedures or outright fraud by faceless financial institutions that have entire law firms on retainer? What about denial of health care when one learns of a life-threatening condition? These threats are arguably much more devastating than a night or two in county jail, and yet, to the surprise of many, people who face them have no constitutional right to counsel. The U.S. Supreme Court squelched that hope in 1981 when it decided, in Lassiter v. Department of Social Services, that North Carolina did not violate the constitutional rights of a mother who had no lawyer when the state terminated her parental rights.

But the civil side of the right to counsel question is getting more attention. Not only did The New York Times profile the issue on its March 16 front page; a determined group of advocates across the country is directing attention to the harm lack of counsel in civil cases causes to both individual litigants and the court system. Now marking its 10th year, the National Coalition for a Civil Right to Counsel has worked to increase the availability of counsel as a right for low-income people in cases affecting basic human needs. Clearinghouse Review, published by the Sargent Shriver National Center on Poverty Law, has covered the work of the coalition since its inception. In 2006, for example, coinciding with the American Bar Association’s passage of a resolution in support of a civil right to counsel for low-income people in cases affecting basic human needs, Clearinghouse Review devoted its entire July-August issue to the movement for a civil right to counsel and a range of approaches to achieving the right.

In its May-June issue the Review will publish three related pieces on the topic. An article by John Pollock, Coordinator of the National Coalition, and Mary Schneider, Executive Director of Legal Services of Northwest Minnesota, will take a look back at the coalition’s work and progress. Martin Guggenheim and Susan Jacobs of the Center for Family Representation in New York will discuss advancements in ensuring representation of parents involved in the child welfare system. And retired California Court of Appeal Justice Earl Johnson, Jr., now a key player in the coalition, long-time proponent of a civil right to counsel, and pioneer of the legal aid movement as we know it today, will reflect on the meaning of Gideon for anti-poverty advocates and the evolution of his conviction about the importance of civil counsel.

Most of those seeking to improve the indigent defense system and advocating a civil right to counsel understand full well that the two rights are sides of the same coin, affecting the same communities. Lack of adequate defense to criminal charges can lead to lasting collateral consequences such as a criminal record that makes obtaining housing and employment difficult, while lack of counsel in an eviction or foreclosure proceeding can lead to homelessness and greater vulnerability to criminal charges. As we celebrate the anniversary of the Gideon decision and resolve to push for its full realization, these inextricable links should remind us how important it is, in fulfilling Gideon’s promise, not to forget people on the civil side of the courthouse.

Children in Foster Care and Psychotropic Medication

PillsChildren placed in foster care face many challenges. They struggle to maintain connections to their birth parents and other relatives. If they don’t have any known relatives, children in care often face an uphill battle to be adopted. Children in care also have difficulty staying in their schools—which is an important part of maintaining stability and achieving academically—and obtaining the services that they need.

Over time, advocates working with children in care have realized that their clients were dealing with another challenge. Mental health providers were medicating children in foster care with powerful psychotropic drugs at significantly higher rates than other children, often with little clinical guidance. In the January-February issue of Clearinghouse Review: Journal of Poverty Law and Policy, Professor Melissa D. Carter of Emory University’s Barton Child Law and Policy Center unpacks this thorny problem. 

Use of psychotropic medication is on the rise among all children. Children in foster care are often dealing with traumatic stress that should be treated with nonpharmacological approaches, such as therapy, rather than medication. Moreover, children in care often do not understand what medications they are taking, why they are taking the medications, and how the drugs interact, which is both unjust and dangerous. Child welfare systems and advocates for children in care must work together to increase oversight of the administration of psychotropic medication to children in care as well as to improve children’s understanding of medical decision-making.

Thankfully, more and more states are implementing changes to reduce the number of children in care receiving these powerful medications and educate everyone involved in the child welfare system about optimal mental health care. In 2011, North Carolina introduced a program called A+KIDS (Antipsychotics + Keeping It Documented for Safety). This program is not targeted at children in care, but at all Medicaid recipients under the age of 18 (which, as a practical matter, encompasses North Carolina’s foster care population). According to a North Carolina Department of Health and Human Services press release, North Carolina physicians prescribing psychotropic medication to these children must now use a web-based tool that “ensures physicians have information on antipsychotic medications, side effects and possible alternatives before writing the prescription. The online registry makes that information available while the physician enters diagnoses and other health factors relating to the young Medicaid patient.”

A similar approach has already proved successful in Texas. For many years, Texas was one of the states with the highest rate of psychotropic medication of children in foster care. But the rate of foster children in Texas prescribed these medications has fallen dramatically—from 42 percent in 2004 to 32 percent in 2012, even though the state’s total number of children in care has grown. What accounts for this decline?  Careful tracking of prescriptions, which was achieved by placing all children in care into a single Medicaid managed care organization and then tracking the medical histories of children in care with a “health passport.”

Are advocates in your area working on ways to improve prescription oversight of children in foster care? The Clearinghouse Review editorial team would love to hear from you about how your jurisdiction is addressing this issue, either in the comments section below or by email.

Justice on Wheels in New York and California

In New York City and California, two very different organizations devoted to improving the lives of low-income people are using a common approach to reach underserved populations.

And that approach involves wheels.

New York Legal Assistance Group (NYLAG) provides free civil legal services to New Yorkers who cannot afford attorneys. With 51 intake sites located in courts, hospitals, and community-based organizations in all five boroughs of New York City as well as Westchester and Long Island, NYLAG helps thousands of people every year with legal problems relating to housing, public benefits, domestic violence, education access, and other issues.

OneJustice, by contrast, does not focus on direct client representation. OneJustice is a California nonprofit organization that helps low-income Californians indirectly—by supporting nonprofit legal services organizations and their pro bono partners. More specifically, OneJustice supports a network of 100+ nonprofit legal organizations and 800 staff attorneys with financial leadership, new fundraising strategies, executive coaching, board governance trainings, and more.

Despite these two organizations’ many differences, they both came to the same conclusion a few years ago: they could serve more low-income people if they brought lawyers into more direct contact with the low-income people they wanted to serve. So NYLAG and OneJustice both started thinking about wheels.

NYLAG spent years developing its Mobile Legal Help Center—a 41-foot-long Freightliner truck custom-designed as a fully functioning legal services office. The vehicular office is a partnership between NYLAG and the New York State Courts Access to Justice Program. Not only is the Mobile Legal Help Center a legal services office; a video link to the New York State courts allows judges to preside over emergency hearings in domestic violence and eviction cases. The Mobile Legal Help Center, which launched in January 2012, was an essential component of NYLAG’s Hurricane Sandy response. Storm victims in Red Hook and Coney Island in Brooklyn, the Rockaways in Queens, Staten Island, and Long Island were able to obtain help with FEMA claims, housing, and emergency public benefits quickly and safely, thanks to the Mobile Legal Help Center—even though NYLAG itself was displaced from its Hanover Square office.

OneJustice started its Justice Bus Project in 2007. The project emanated from the realization that low-income rural Californians were suffering from a double bind; they had lots of legal problems—some of them very specialized issues like water access—but very little access to low or no-cost legal assistance. So OneJustice began coordinating Justice Bus trips to bridge the gap between urban pro bono resources and rural and isolated communities that needed help. Often a Justice Bus trip is born when OneJustice contacts a rural legal services organization to discuss its community’s needs, and that conversation sparks an idea for a Justice Bus trip. Substantively, the Justice Bus has handled problems ranging from elder law to economic development. Recently, the Justice Bus traveled more than 600 miles round-trip to help Native American veterans.

Would a mobile component bring a new dimension to your organization’s work? How are these vehicles funded? What are the challenges of staffing them? The answers to these questions and much more can be found in the new issue of Clearinghouse Review, which features articles on the Mobile Legal Help Center and the Justice Bus.

The King Speech: Tracking Down Martin Luther King, Jr.'s Words on Health Care

“Of all the forms of inequality, injustice in health care is the most shocking and inhumane.” – Dr. Martin Luther King, Jr.

Martin Luther King, Jr.I first came across this powerful quotation in my role as a legal editor for Clearinghouse Review: Journal of Poverty Law and Policy. I was editing Gordon Bonnyman’s important article in the current issue of the Review, “Helping Hope and History Rhyme: Why and How Every Advocate Can Help Realize Health Care Reform,” in which he asserts that the Affordable Care Act is the “most important civil rights milestone” since the 1965 Voting Rights Act. In his article, Bonnyman, the executive director of the Tennessee Justice Center, predicts that the Act “will close the racial gap in health coverage, which is a prerequisite for eliminating disparities in health care and health status.”

As the Review’s legal editors often do, I asked him to supply some sources to support his conclusion. He did so and elegantly introduced them with the above quotation from Dr. King. The quotation itself then needed a source, so I quickly searched for the speech or paper that included it.

Although the quotation was oft-repeated—usually in connection with the debate over the Affordable Care Act or President Clinton’s attempts at health care reform in the early 1990s—it frequently appeared without further attribution. In the few times it was credited, it was listed as a statement Dr. King made in Chicago on March 25, 1966, to the second convention of the Medical Committee for Human Rights. I tried several online search tools to find a copy of Dr. King’s speech to this convention and even sought help from my husband, an academic librarian, who searched newspapers from around the time of the speech, hoping to find a quote from Dr. King’s remarks.

In spite of our best efforts, I could not locate the actual text of this speech anywhere.

The genesis of Dr. King’s statement on unequal health care began to appear uncomfortably similar to that of another famous MLK “quotation” from the year before: “I mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy.” After this strikingly apropos quotation spread like wildfire across social media in the wake of Osama bin Laden’s death, word spread—albeit more slowly—that the quotation was apocryphal, the result of a Facebook post that morphed as it was shared, the Internet version of the game “telephone.” Could the same process have birthed another too-good-to-be-true quotation from Dr. King?

I sought out more experts who might be helpful in the search. I contacted Nancy Shawcross, the curator of manuscripts at the Rare Book and Manuscript Library at the University of Pennsylvania, which houses the papers of the Medical Committee for Human Rights. Shawcross confirmed that Dr. King spoke at the 1966 convention, but she did not have the text of his remarks.

Next I tried the King Library and Archives at the Martin Luther King, Jr. Center for Nonviolent Social Change in Atlanta. The archivist began to chuckle as I told her my quest. I was not the first person to call in search of a primary source for this quotation, but again, she had never come across a copy of Dr. King’s remarks that day in Chicago.

I then tried the Martin Luther King, Jr., Research and Education Institute at Stanford University. I communicated with Stacey Zwald Costello, an assistant editor there. She, too, had hunted for the roots of this quotation to no avail.

At this point, I was beginning to feel pretty confident that Dr. King never uttered these famous words. All occurrences of the quotation referenced other secondary sources, in a circular citation cycle with no beginning. Expert researchers could not track down its roots. And of course, the quotation itself was just so perfect to support the efforts of advocates seeking health care reform. It had “apocryphal” written all over it.

Still, at the suggestion of Zwald Costello, I contacted Professor John Dittmer, an award-winning historian who had included the quotation in his book The Good Doctors: The Medical Committee for Human Rights and the Struggle for Social Justice in Health Care. Dittmer, professor emeritus at Depauw University, recalled that he found the quotation in a newspaper clipping in the papers of the Medical Committee for Human Rights that were eventually donated to Penn. He said he had come to believe that no transcript or recording of the speech existed. He did, however, point me in a new direction, to someone who had heard Dr. King’s remarks firsthand: Dr. Quentin Young of Chicago.

Young had been the chair of the Medical Committee for Human Rights in 1966, the year Dr. King spoke at the group’s convention. I spoke to Young, and to my pleasant surprise, he confirmed that Dr. King had indeed made such a statement but noted that Dr. King actually called injustice in health care “inhuman,” an adjective Young found stronger than the commonly (mis)quoted “inhumane.” Young said that Dr. King was speaking spontaneously at the time. He could not direct me to a recording or transcript of the remarks but suggested that I speak to Dr. Ida Hellander, director of policy and programs at Physicians for a National Health Program. I did, and she, too, had looked for a primary source for the quotation but had never found it.

In the end, Dr. Quentin Young’s account of Martin Luther King, Jr.’s remarks satisfied me, even if I did not have a source to cite. By this time, however, Gordon Bonnyman’s article was already in print—without the suspect quotation included.  

Even without Dr. King’s words to back him up, Bonnyman makes a strong case for why health care reform should be a priority for every legal services advocate, even those who don’t consider themselves “health law attorneys.” He points out that the Affordable Care Act will affect many people who come to legal services for reasons other than health care, such as consumer, domestic violence, housing, and veterans issues. He sees the current options for health reform—including extending Medicaid coverage to new populations—as advocacy opportunities that legal services programs cannot afford to miss.

In fact, states are deciding right now whether they will extend Medicaid coverage under the Affordable Care Act to Americans with incomes up to 138 percent of the federal poverty level—about $15,000 for a household of one. States that refuse to extend this health insurance to their less fortunate citizens are condemning them to live sicker and die sooner. Interestingly, the very place where Dr. King addressed the Medical Committee for Human Rights, Cook County, Illinois, has already seized the opportunity to extend Medicaid coverage to a broader swath of its low-income residents.

This weekend Americans will pause and remember Martin Luther King, Jr., and the many social justice reforms he championed. We should celebrate how far America has advanced since the 1960s, while we take stock of the challenges still before us. And as we look at our health care system and its pending reforms, we should heed Bonnyman’s call and consider what advocates can do to push our leaders to begin to eradicate injustice in health care, “the most shocking and inhuman” form of inequality.

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Clients with Limited English Proficiency Face Unique Obstacles

Coffee cupImproving limited-English-proficient (LEP) clients’ access to courtrooms and public benefits is a challenge for advocates across the country.  Helpful examples of collaborations and strategies that legal aid and legal services lawyers can use to help LEP clients get justice for themselves and their families are featured in the latest issue of Clearinghouse Review.   

Despite 2002 Justice Department guidance instructing state courts and other funding recipients to provide competent interpreters free of charge in all criminal and civil matters—including encounters outside of the courtroom—many state court systems fail to provide competent, qualified interpreters to LEP litigants in civil matters.  If courts do provide interpreters, they often improperly charge litigants for these services.  Laura K. Abel, Deputy Director of the National Center for Access to Justice at Cardozo Law School, and Matthew Longobardi, a former legal intern at the center, use several states’ compliance (or noncompliance) with Justice Department directives as a starting point for their exploration of the status of LEP court users. 

After discussing recent Justice Department communications and policies, Abel and Longobardi look at seven court systems in which the Justice Department was investigating or monitoring language access as of December 2007.  Examining the status of interpretation services in Alabama, California, Colorado, North Carolina, Rhode Island, Tennessee, and Utah reveals one happy development: communication between the courts and limited-English-proficient individuals in six of those states is now much more reliable it was than several years ago.  Notably, many of the improvements to interpretation services in those six states came about because of the actions of public interest lawyers.  Problems still persist, however, and Abel and Longobardi offer helpful lessons for further improvements. 

Jana J. Edmondson and Lisa J. Krisher, attorneys at Georgia Legal Services Program, contributed an in-depth look at the specific challenges facing their LEP clients when they try to navigate Georgia’s court and public benefits systems. Edmonson and Krisher describe the hurdles their clients face when trying to litigate matters in Georgia’s courts, apply or maintain public benefits (including TANF and unemployment benefits), or obtain correct birth certificates for their children, and provide concrete examples of strategies that they and their colleagues have used to assist LEP clients.  Through litigation and education—not only of clients, but of judges, lawyers, and courtroom personnel—Georgia Legal Services Program is improving LEP access to justice, one client at a time.

Clearinghouse Review has a long history of providing advocates with information and strategies they can use to assist LEP clients.  If your LEP clients are encountering a problem that you would like to see addressed in the Review, please let us know in the comments section.

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Public Interest Lawyers Use Twitter to Respond to Hurricane Sandy

Twitter logoAlthough many of their offices were closed (and some were without power or flooded), New York City public interest lawyers still managed to help clients in crisis during and after Hurricane Sandy. Like federal, state, and city officials, many lawyers turned to Twitter before, during, and after the storm. As Kat Aaron writes in a Storify post on her excellent Not So Civil Justice blog, “[i]n the aftermath of Superstorm Sandy, low-income New Yorkers have pressing questions about food stamps, evictions, and unemployment benefits. Legal services offices throughout the area turned to social media to get out vital information.” Because advocates can tweet by text message from their individual cell phones, Twitter was available to them long after their power and landlines went out.

As New York City’s subway system shut down before the storm, lawyers used Twitter to inform their clients about court closures. While the storm raged and after it passed, organizations continued to tweet important news relating to their clients’ cases, particularly Governor Cuomo’s executive order suspending and modifying timelines for filing original cases and appeals and the New York City Civil Court’s orders halting evictions during the week of the storm, which appeared on the New York State Unified Court System’s website. In addition, advocates tweeted other important announcements relating to clients’ ability to file for unemployment benefitsobtain replacement SNAP benefits, get emergency social security payments, and find temporary shelter. 

Organizations also relied on Twitter to help them surmount internal operational challenges posed by the storm. Many organizations’ phone and email systems were down—but individuals could still tweet, so executive directors and other staff members were able to use Twitter to communicate with their colleagues. For example, on October 31, the New York Legal Assistance Group tweeted:

“NYLAG's main office remains flooded and are closed Thurs. We are setting up remote locations. Staff should call 917 209 4728 for more info.”

NYLAG’s main offices in downtown Manhattan will be closed for several weeks, but the organization has been setting up temporary offices at disaster relief centers and using its mobile help center to assist Hurricane Sandy victims. Unsurprisingly, NYLAG is using its Twitter feed to inform potential clients about how, where, and when they can meet with attorneys.

Indeed, as legal aidlegal services, and other public interest organizations reopened across New York City, they used Twitter to let their clients know when and where they could meet with advocates. On November 1, Legal Services NYC tweeted:

“Most offices open tomorrow on limited basis/hours for existing cases and emergency walk-ins. Still no phones in or out. http://bit.ly/Rtb6dE”

Organizations also informed their followers how they could volunteer to help those hurt by the storm. On October 30, the New York Civil Liberties Union tweeted:

 “Another useful list of organizations looking for help/volunteers to help rebuild after #SANDY – http://bit.ly/RmGDKz”

As lawyers were able to get back into their offices and back to their computers, their tweets provided more detailed assistance.  For example, on November 6, MFY Legal Services tweeted:

“We've created 5 fact sheets to help NYers w/ Food Stamp, FEMA, Employment & other problems they're facing after #Sandy.http://ow.ly/f350a”

As the region rebuilds, public interest lawyers are continuing to use Twitter to inform people about hotlines, legal clinics, and other resources. Of course, now that many New York-based organizations either had their power restored or relocated to temporary quarters, attorneys across the state are using their websites to reach out to people displaced or otherwise harmed by the storm. LawHelp.org/NY and the Empire Justice Center have both created impressive lists of Sandy-related resources on their websites.

Advocates everywhere should learn more about Twitter and other innovative technologies that can be used to help clients during a natural disaster. Hurricane Sandy was a monumental disaster, but the response by the public interest legal community has been equally monumental—and Twitter facilitated that response. Advocates’ creative use of Twitter during and after the storm is just one example of social media’s explosion throughout the legal community. How will public interest lawyers’ use of Twitter during Hurricane Sandy change their daily work?  Does advocates’ embrace of Twitter and social media have any negative ramifications for their clients?

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The Farm Bill Wasn't Renewed. So What?

Farm cowOn September 30, 2012, the Farm Bill expired. The Farm Bill not only deals with agriculture, it is also has a nutrition title that covers many of the programs that provide food to low-income Americans, such as the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps). So what does Congress’s failure to reauthorize these programs mean?

In the short-term, not much.

Most importantly for low-income Americans and their advocates, nutrition programs such as SNAP will continue at their current levels, at least for now. As Brad Plumer writes on Wonkblog, just before the Farm Bill expired Congress passed a continuing resolution “to make sure that food stamps and nutrition programs stay funded at current levels until March 2013.” Congress’s failure to reauthorize the Farm Bill on September 30 does have immediate consequences for some constituencies—especially farmers—but for participants in nutrition programs, the real changes could come after the November election, when Congress is expected to finally pass a new bill.

Do you want to know more about the Farm Bill? About the programs for low-income Americans that are found in the bill?  Clearinghouse Review’s 2012 special issue on hunger and food insecurity, Hunger in the Land of Plenty, is now available online. The issue leads off with a comprehensive look at hunger in America by one of the country’s foremost experts on the topic, James D. Weill, President of the Food Research and Action Center. Then, the Review picks up on the topic of last year’s special issue on human rights with a piece on the right to food in international human rights law and how advocates can use the right-to-food framework in their practice. The special issue also covers:

  • A wide array of SNAP-related topics, from SNAP basics to SNAP application delay litigation and staggered SNAP issuance;
  • Share Our Strength’s No Kid Hungry campaign;
  • Food banks;
  • Immigrant access to food from private charities;
  • Institutional food;
  • How the Farm Bill helps to create sustainable community food systems;
  • Double Up Food Bucks;
  • Antihunger and food justice movements in Arkansas and Mississippi;
  • Food insecurity among America’s elders; and
  • Links between poverty, food insecurity, and climate change.

The issue closes with a profile of another prominent anti-hunger advocate, Jessica Bartholow of the Western Center on Law and Poverty. Because of the uncertain status of the Farm Bill, the expert analysis contained in this year’s special issue is particularly important for public interest lawyers, public policy experts, and concerned citizens.  Don’t miss it.

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The Shriver Center acknowledges with thanks the AARP Foundation and the Francis Beidler Foundation for their generous support in publishing this special issue of Clearinghouse Review.

With Governor's Veto, California Remains Behind New York in Protecting Domestic Workers

Home care workerCalifornia’s domestic workers, primarily immigrant women of color, vowed to continue fighting for labor rights after Governor Jerry Brown vetoed Assembly Bill (A.B.) 889, the Domestic Workers Bill of Rights. Brown said in his veto message that the bill raised too many unanswered questions. But the National Domestic Workers Alliance accused Brown of doing a “tremendous disservice” not only to the workers but to the people they care for. After multiple mobilizations in Sacramento of thousands of workers, for whom time away from work was a real sacrifice, and after New York adopted similar legislation in 2010, workers had been hopeful.

The labor of domestic workers, who care for children, older people, and people with disabilities, goes largely unrecognized, and these workers lack basic protections that others take for granted. For historical reasons, domestic workers are not covered by the National Labor Relations Act and other employment laws. And because domestic workers toil in isolation in individual homes, taking concerted action can be difficult. But in recent years, across the country, they’ve found each other and begun to organize.

A decade of advocacy in New York City culminated in a state law that provides expanded overtime pay, protection from discrimination, mandatory days of rest, and other basic benefits for the tens of thousands of women who work as nannies, housekeepers, and companions for the elderly in New York State. Clearinghouse Review reported on that effort last year. Authors Ai-jen Poo and E. Tammy Kim described how a campaign that began with a focus on domestic workers’ grievances against individual employers grew into a multi-year effort focused on the state legislature. Domestic workers from the Asian, South Asian, Latina, and Caribbean communities collaborated to design the legislation. Starting in 2003, they built a base, recruited allies, and told their stories publicly. The New York Assembly passed a version of their bill in 2009; the state senate followed in 2010, and Governor David Paterson signed the bill that summer.

California domestic workers have also been organizing for a decade, and workers’ advocates were hopeful that California would follow New York’s lead, particularly given California’s large immigrant population. Domestic workers’ rights legislation had passed in the state in 2006 but was vetoed by then-Governor Arnold Schwarzenneger, a Republican. This time, there was reason to think that the chances were better with Democrat Jerry Brown in office. After all, the first time Brown was governor—some 35 years ago—he staunchly supported the landmark California Agricultural Labor Relations Act, which dramatically increased the labor rights of farmworkers.

A.B. 889 would have removed the exclusion of California’s approximately 200,000 domestic workers under other state labor laws and, in the words of Sylvia Lopez, a leader of the California Domestic Workers Coalition, recognize them as “real workers.” If Brown had signed the bill into law, Lopez and her colleagues would have been assured of the same rights other employees enjoy to meal and rest breaks, overtime pay, and workers compensation. Domestic workers who “live in” or work 24-hour shifts would have received certain industry-specific protections as well, such as the right to eight uninterrupted hours of sleep and use of kitchen facilities to cook their own food.

But Governor Brown wasn’t persuaded. In his veto message, he expressed concern for elderly or disabled employers of domestic workers, asked what the bill’s “economic and human impact” would be on employers, and also raised other questions. However, he didn’t reject the bill’s approach entirely, calling instead for the Department of Industrial Relations to “study” his questions and simultaneously to address certain domestic worker issues through regulations.

Although describing itself as “shocked” at the veto, the National Domestic Workers Alliance vowed to continue and expand its campaign in California and to move into other states as well, suggesting Illinois and Massachusetts as likely locales for new efforts. Work is only beginning in these states, and the Shriver Center will be involved in the campaign in Illinois as it unfolds.

Social Impact Bonds: Passing Fad or Revolutionary Innovation?

Imagine a conference room full of Wall Street types. Blackberries, hand-tailored suits, leather portfolios. Intermingled among the investment titans are public interest attorneys and social workers. After one of the Wall Street men stands in front of a whiteboard explaining how the bond market works, a social worker steps up and explains how a public social service program is administered. 

What could bring all of these people together?

Social impact bonds.

One of 2012’s hottest ideas, social impact bonds are being talked about—mostly enthusiastically—everywhere from the Economist to National Public Radio. But what are they? There are lots of definitions floating around; as Kevin Starr put it in his great Stanford Social Innovation Review blog post (first in a series), “the definition of impact investing is still a dog’s breakfast.”

Thankfully, the Center for American Progress explains how social impact bonds work clearly and concisely in a helpful report from 2011:

[A] government contracts with a private-sector financing intermediary we’ll call a ‘social impact bond-issuing’ organization, or SIBIO, to obtain social services. The government pays the SIBIO entirely or almost entirely based upon achieving performance targets. If the bond-issuing organization fails to achieve the targets, the government does not pay . . . The bond issuer obtains operating funds by issuing bonds to private investors who provide upfront capital in exchange for a share of the government payments that become available if the performance targets are met.  The bond issuer uses these operating funds to contract with service providers to deliver the services necessary to meet the performance targets.

The four key players in the social impact bond model

Counterintuitively, there does not even need to be a “bond” in the traditional sense of the word.  As the Center for American Progress explains in a separate fact sheet, the word “bond” in social impact bond really describes the relationship between the bond issuer and the private investors.

There are several positive features to the social impact bond approach. Because the initial funds would come from the private sector, not the taxpayer, even when budgets are tight governments and organizations would have an incentive to use new approaches to social problems. Why? Because the spending is deferred; the government does not pay the external organization any money until the organization achieves its targets. The emphasis on performance targets would give everyone involved in the project more incentives for success (or as Wall Street would say “skin in the game”), and would reduce the possibility of a government repeatedly funding a program that did not produce results. Also, because the SIBIO is responsible for achieving the targets–not the government–it is easier to reallocate funds when a program isn’t producing results. Moreover, if a program doesn’t get results, the government does not have to pay the external organization that has issued the bonds.

What types of projects are most amenable to social impact bond funding? Let’s take a look at the world’s first social impact bond project, in the United Kingdom, where the British Ministry of justice issued social impact bonds to a nonprofit organization that promised to improve recidivism of prisoners at Peterborough Prison by 10 percent compared to other similar prison populations. If the nonprofit succeeds, it will receive up to $13 million over eight years. The Peterborough project is ideal for social impact bonds because of several attributes, which other potential social impact bond projects will also need to have to succeed:

Potential for reducing costs: The Ministry of Justice reasonably believes that the Peterborough project will save money for the government in the long run. For a social impact bond project to work, the external organization has to show that its methods will be cost effective.

Observable, measurable outcomes: The nonprofit organization working at Peterborough Prison is working with a definite treatment population, which means the organization will be able to track its outcomes for the life of the project–ideally, between three and eight years.

Known social interventions: Government, nonprofit, and private organizations have all worked on prisoner recidivism before, so there is a vast literature describing which approaches to the program work, and which ones do not. If the organization is not successful, however, prisoner reentry is not a core government service, so there are few negative consequences if the external organization does not reach its targets and discontinues services.

At least a few governmental agencies in the U.S. are poised to utilize these bonds. In August, New York City announced that Goldman Sachs is investing nearly $10 million in social impact bonds in a jail program at Rikers Island to reduce recidivism rates. If the program reduces recidivism by 10 percent, Goldman would be repaid the full amount; if recidivism drops more, Goldman could make millions in profit; if recidivism does not drop, Goldman would lose a significant portion of its investment. Connecticut’s General Assembly recently considered social impact bonding as part of its annual budget legislation, and the Manhattan borough president would like to use social impact bonds to boost early-childhood education. Even senior County Health and Human Services directors, philanthropic organizations, and more than one hundred service providers, community members and advocates in Cuyahoga County, Ohio have been discussing the concept

In addition, organizations are springing up to provide the vital tracking and measuring services that governments and organizations need for social impact bonds to work. One such organization, the Global Impact Investing Network, is developing “a common framework for reporting the performance of impact investments” with the support of USAID, the Rockefeller Foundation, Deloitte, and PricewaterhouseCoopers.

Keeping the limitations of social impact bonds in mind, what program areas addressing the needs of low-income Americans might use this type of financing successfully?

  • Foster care reentry prevention
  • Preventive health care
  • Homelessness prevention
  • Unemployment

While social impact bonds are not going to cure all of America’s social problems, if implemented wisely and slowly, these bonds could promote the kinds of public-private partnerships that politicians are good at praising but not at creating. At the very least it’s an interesting concept which deserves further consideration.


Karen Harris contributed to this blog post.
 

To Eradicate Poverty, Promote Access to Justice

GavelThe convergence of domestic anti-poverty advocacy and international human rights law is apparent in a report released in August by an independent expert appointed by the United Nations Human Rights Council. In the report, Magdelena Sepúlveda, the Special Rapporteur, calls access to justice not only a “fundamental right in itself” but also “essential for the protection and promotion of all other civil, cultural, economic, political, and social rights.” Sepúlveda will present her report to the U.N. General Assembly in October.

Prepared at the direction of the Human Rights Council, the report comes at the midpoint of the Second United Nations Decade for the Eradication of Poverty (2008-2017). Although it analyzes obstacles to access to justice through an international lens, legal aid lawyers and other anti-poverty advocates in the U.S. will find much that is familiar.

For example, the report notes the insufficiency of mere “de jure access”; to ensure “de facto access” states must eliminate conditions that perpetuate discrimination or have a disparate impact on vulnerable groups. Other obstacles recounted will be familiar to any U.S. anti-poverty advocate, e.g., domestic and sexual violence; criminalization of actions that stem from poverty, like sleeping in public places; and a legal system’s failure to be accessible to people who do not speak the predominant language.

Growing numbers of anti-poverty advocates in the U.S. are finding that international human rights norms can enhance their practice. Clearinghouse Review highlighted anti-poverty work using this framework in its 2011 special issue, Human Rights:  A New (and Old) Way to Secure Justice. Legal aid advocates’ work has always promoted human rights, and more now realize that claiming the label offers additional tools in representing clients..

Advocates are not alone in finding a new appreciation for the human rights perspective; the U.S. government, after years of mostly ignoring or resisting international human rights bodies, has begun to engage. In Geneva this month, at the U.N. High Level Meeting on the Rule of Law, the U.S. submitted pledges to, among other promises, act to strengthen the rule of law in two arenas: women’s access to justice and access to legal aid. Regarding domestic violence, the U.S. stated its intent to develop best practices and performance measures in family court structures, sexual assault evidence collection and police response, and reduce domestic violence homicides. Regarding access to legal aid, the U.S. stated its intent to celebrate the 50th anniversary of the Supreme Court’s Gideon v. Wainwright decision finding a constitutional right to council in felony cases for defendants who cannot afford counsel. The U.S. also pledged to “strengthen safety-net programs for low-income and vulnerable Americans by strategically incorporating civil legal assistance” and “to improve training opportunities for United States civil legal aid lawyers.”

Special Rapporteur Sepúlveda’s report highlighted “non-existent or inadequate legal assistance” as a major barrier to accessing justice, and noted the potential harm that lack of legal aid in civil cases caused to people living in poverty. Her recounting of kinds of cases in which lack of counsel can be devastating—“tenancy disputes, eviction decisions, immigration or asylum proceedings, eligibility for social security benefits, abusive working conditions, discrimination in the workplace, or child custody decisions”—closely tracks the American Bar Association’s 2006 resolution supporting “legal counsel as a matter of right at public expense to low income persons … where basic human needs are at stake, such as those involving shelter, sustenance, safety, health, or child custody ….”

Coinciding with that ABA resolution, the burgeoning civil right to counsel movement in the United States was the focus of Clearinghouse Review’s 2006 special issue, A Right to a Lawyer? Momentum Grows. Activity has only increased since then, led by the National Coalition for a Civil Right to Counsel. Across the country, civil right to counsel pilot projects are under way, bar associations are strategizing about how best to promote the right, and New York’s chief judge Jonathan Lippmann has announced a bar admission requirement for new lawyers of 50 pro bono hours.

On this issue too, anti-poverty advocacy and international human rights law are converging. Will governments respond to the U.N. Special Rapporteur’s call to shatter the barriers that prevent people from accessing justice systems? Will the U.S. follow up on the pledges made in Geneva? Perhaps the answers depend on the determination and creativity of advocates. But for those who want to seize the opportunity, international human rights law offers new handles for attacking poverty.

Seven Years After Hurricane Katrina: Who Owes Whom?

 

Right now Hurricane Isaac is thrashing New Orleans and the Gulf Coast, but the thoughts of many residents there are on another storm. Today marks seven years since Hurricane Katrina blasted ashore along the Gulf Coast. The storm’s trail of destruction left at least 1,836 people dead and 80 percent of the city of New Orleans flooded, largely from the failure of the city’s levee system. Hurricane Katrina forever changed New Orleans economically, culturally, and environmentally and left the rest of the country with unforgettable images of damage and desperation. The federal government, especially the Federal Emergency Management Agency (FEMA), was roundly criticized for its bungled response to this unprecedented disaster.

Seven years later, New Orleans is still struggling to recover. Last week Professors Bill Quigley (who has written twoarticles about poverty and Hurricane Katrina for Clearinghouse Review: Journal of Poverty Law and Policy)and Davida Finger released their annual “Katrina Pain Index” to document the city’s slow recovery. The numbers paint a bleak picture for low-income residents of the Big Easy:

·         27 % of New Orleans residents live in poverty.

·         40 % of poor adults work, including a quarter who work full time yet remain in poverty.

·         37 % of New Orleans families are “asset poor,” which means they could not survive for three months without income.

·         42 % of New Orleans children live in poverty.

·         New Orleans has the second highest rate of homelessness in the country.

·         New Orleans also has the second highest rate of income inequality, and the racial disparities are striking:

o   30 % of African Americans live in poverty, as opposed to 8 % of whites.

o   50 % of African Americans in New Orleans are asset poor, followed by 40 % of Latinos, 24 % of Asians, and 22 % of whites.

o   65 % of African American children are poor, versus less than 1 % of white children.

To be sure, New Orleans had its problems before Hurricane Katrina, but given these statistics and the failures of the U.S. Army Corps of Engineers and FEMA, one could argue that the United States owes a debt to New Orleans and survivors of Hurricane Katrina. Instead, in a twisted irony, the federal government has been trying to collect debts fromHurricane Katrina survivors.

In the current issue of Clearinghouse Review, Professor Finger chronicles FEMA’s attempts to recoup alleged overpayments of post-disaster housing assistance and the challenges recipients have faced in contesting these collection efforts.

FEMA’s initial attempts to terminate housing assistance and recover overpayments were almost as sloppy as its initial handling of the hurricane itself: it did not adequately notify those who had been overpaid about why it wanted its money back and what the overpaid recipient could do about it. In addition, housing-assistance recipients had no due process before their assistance payments stopped.

Professor Finger, through her work with the Loyola Law Clinic, teamed with pro bono counsel and brought a class action lawsuit against FEMA that led to a $2.65 million settlement to resolve FEMA’s shoddy procedure for terminating housing assistance. FEMA also abandoned thousands of pending overpayment-collection efforts to review and revise its recoupment procedure.

In the summer of 2011, half a year after settling the class action suit against it, FEMA sent out a fresh batch of more than 80,000 notice-of-debt letters to people who had allegedly received too much housing assistance from the agency. Those who received the letters had two options: (1) within 60 days they could appeal FEMA’s determination and submit evidence of their living situations six years prior—a nearly impossible task for people whose housing had been in flux since Katrina—or (2) they could request a “compromise” by demonstrating their current inability to pay, in which case FEMA would reserve the right to recoup the debt later if their financial circumstances changed.

After outrage grew over these insufficient remedies, at the end of 2011 Congress enacted the Disaster Assistance Recoupment Fairness Act (DARFA) to offer a more appropriate remedy. Under DARFA, an individual who received an overpayment from FEMA can obtain a complete waiver of this debt without the usual tax consequences of debt forgiveness. As Professor Finger explains, waivers are available when the overpayment was FEMA’s fault and collecting the debt would be “against equity and good conscience,” among other factors. Full waivers are available to those whose annual household adjusted gross income is less than $90,000, and partial waivers are available to those with higher incomes.

Unfortunately, FEMA’s authority to waive debt under DARFA ends September 30, 2012. And it is unclear whether everyone who qualifies for debt waiver even knows about it. Professor Finger notes that FEMA sent out 90,000 letters to people about waiving their debts under DARFA; right away, 20,000 of those letters came back as undeliverable. Recipients of these letters have only 60 days to respond from the date on the letter. Southeast Louisiana Legal Services has been working to raise awareness of this debt-relief opportunity.

DARFA has brought relief to some people who were displaced by Hurricane Katrina and then pursued by FEMA, including at least one client of Professor Finger’s legal clinic. After seven years, stopping FEMA’s unwarranted recoupment efforts is one more step toward balancing the debts between hurricane victims and the federal government.

 

Employee or Independent Contractor? A Distinction with a Difference

WorkersThe recession has made many Americans understandably desperate for employment. Some money-hungry employers take advantage of this desperation by misclassifying new hires as independent contractors rather than employees. You know how people sometimes talk about distinctions without a difference? The distinction between independent contractors and employees is not one of those meaningless distinctions. 

Misclassifying an employee as an independent contractor can have dire consequences for the worker. Independent contractors who are injured on the job are not eligible for workers’ compensation. Independent contractors are also not eligible for minimum wage, overtime, unemployment insurance, and any benefits an employer offers to his or her employees, such as health care or vacation benefits. Even worse, the workers who are most frequently misclassified as independent contractors work in low-wage industries such as construction, home health care, landscaping, and delivery services—so they are precisely the people who need employment protections the most.

Although employers that engage in independent-contractor misclassification certainly save money, society as a whole does not benefit. The government loses tax revenue when employers misclassify their employees, and competing businesses suffer when misclassifying employers game the system.

What is being done to fight this problem? On the federal level, the Wage and Hour Division of the U.S. Department of Labor maintains a helpful website outlining the federal government’s response to independent contractor misclassification. The Department of Labor is fighting misclassification through a multi-pronged Misclassification Initiative. As part of that initiative, in 2011 the Department of Labor and the Internal Revenue Service entered into an agreement to “work together and share information to reduce the incidence of misclassification of employees, to help reduce the tax gap, and to improve compliance with federal labor laws.” The Department of Labor has also signed memoranda with individual states outlining plans to cooperate on this issue.

In addition to working with the Labor Department, some state and local governments are tackling independent-contractor misclassification on their own. The range of state and local approaches to this problem is broad; some states, such as Illinois, have passed their own laws to reduce independent-contractor misclassification. Some states have created task forces to fight the problem through investigating alleged misclassification, filing lawsuits, and educating employers and workers about their rights and responsibilities. And some states have given their labor departments more budget dollars to crack down on this problem.

As Andrea Vaughn of the Public Justice Center discussed in a recent issue of Clearinghouse Review, Maryland has both passed a law prohibiting independent-contractor misclassification and created a task force to fight it. In her article, Identifying Misclassified Workers: Lessons Learned from Maryland’s Workplace Fraud Act, Vaughn describes the independent-contractor misclassification problem generally as well as the history behind Maryland’s 2009 law, the Workplace Fraud Act. Vaughn observes that “[t]he strength of the opposition that the Act has faced—both before and after its passage—shows the potential power that this type of legislation bears against unscrupulous employers.” Advocates for low-income workers should take note of the Maryland act and develop a nuanced understanding of independent-contractor misclassification so that they can address this problem in their own work. 

Well-To-Do Foodies Aren't the Only Ones Talking About Food

ApplesAs the Clearinghouse Review editorial team learned in its June 20 webinar, an overwhelming number of people are concerned about the local food movement’s effect on low-income Americans. The Review’s webinar, “Does the Local Food Movement Help or Hurt Hungry Low-Income Americans,” had 381 registrants and 217 participants from forty-one states, including Hawaii, New Mexico, Mississippi, New Hampshire, Vermont, Oklahoma, Wisconsin, Kentucky, Utah, Colorado, Maine and West Virginia. 

During the webinar, each panelist answered a question related to his or her practice. Then, the moderator, Susan Schneider, director of the University of Arkansas’s ground-breaking LL.M. Program in Agricultural & Food Law, opened the webinar up for questions. Audience members asked probing and insightful questions about a wide range of issues. Participants inquired about:

  • Food deserts.
  • Proposals to prevent Supplemental Nutrition Assistance Program (SNAP) recipients from using their benefits on unhealthy foods.
  • The role of food banks in securing food for low-income populations.
  • Staggered issuance of SNAP benefits.
  • Rural food insecurity.
  • How low-income Americans who are ineligible for public assistance benefits can gain from the local food movement.
  • Whether local food programs really create jobs.

The webinar panelists were Dan Lesser, Director of Economic Security at the Shriver Center; Jessica Bartholow, Legislative Advocate at the Western Center on Law and Poverty; Emily Broad Leib, Senior Clinical Fellow at Harvard Law School’s Center for Health Law and Policy Innovation and Director of the Center’s Food Law and Policy Program, and Valerie McWilliams, Senior Supervisory Attorney at the Land of Lincoln Legal Assistance Foundation.

If you weren’t able to join Clearinghouse Review for the webinar, a YouTube recording of the discussion is available here. To learn more about low-income Americans and the local food movement, you can visit the webinar's resource page and look for Clearinghouse Review’s 2012 special issue on hunger and food insecurity, which will be available online in October. In the special issue, prominent experts on the impact of hunger on low-income Americans will inform advocates about the landscape of food insecurity in America. The issue will contain articles appealing to practitioners from all different backgrounds and regions. Among other topics, our authors will focus on:

  • SNAP-related issues, such as effective intake and recertification.
  • Using food banks effectively.
  • The failures of institutional food.
  • Incorporating the international right to food into domestic practice.
  • The impact of climate change on low-income Americans’ ability to access food.
  • Low-income seniors and access to food.
  • The Farm Bill’s potential to strengthen food systems.

The special issue is being supported by AARP Foundation and the Francis Beidler Foundation.


 

The Debt Collector Will See You Now

Medical debtWhen patients seek emergency medical treatment, they expect to speak to doctors and nurses—not debt collectors. But hundreds of documents released last week by the Minnesota Attorney General reveal that at least one medical debt collector, Accretive Health, has been working on the front lines in hospitals, often demanding that patients pay before receiving medical treatment.

According to the New York Times, the documents show that the embedded debt collectors may appear to be hospital employees and may even discourage patients from seeking emergency care. They follow scripts, just like debt collectors on the telephone, only they speak to patients in person at a time when they have immediate medical needs.

In addition to its scrutinized work at Fairview Health Services in Minnesota, Accretive Health holds contracts for “revenue cycle operations” with Henry Ford Health System in Michigan, Intermountain Healthcare in Utah, and Catholic Health East, which runs hospitals in eleven states. All of these hospital systems are nonprofit corporations, meaning that the Internal Revenue Service allows them to operate tax-free in exchange for providing certain benefits to the communities they serve. The tax savings realized by nonprofit hospitals aren’t peanuts—$4.3 billion in 2002 alone. Nonprofit hospitals make up less than 2 percent of nonprofit organizations, but they receive 41 percent of federal nonprofit tax benefits.

Many nonprofit hospitals meet their “community benefit” obligations by providing charity care, also known as “financial assistance,” which helps fill a gap in health coverage for many uninsured and underinsured Americans. But measuring and monitoring hospitals’ community benefit efforts has been a challenge. In fact, in 2005, the IRS noted the prevalence of abuse of the amorphous “community benefit” standard, saying it had difficulty distinguishing between nonprofit and for-profit hospitals in their operations.

As Corey Davis of the National Health Law Program and Jessica Curtis and Anna Dunbar-Hester of Community Catalyst explain in their recent article in Clearinghouse Review, Congress responded to this abuse by including in the Patient Protection and Affordable Care Act amendments to sections of the tax code that govern nonprofit hospitals. These changes protect low-income and self-pay patients through new billing and collection standards that nonprofit hospitals must follow to maintain their tax-exempt status. Unlike some parts of the new health care law, these changes went into effect immediately. According to Section 9007(a) of the Patient Protection and Affordable Care Act, nonprofit hospitals now must:

  • refrain from engaging in “extraordinary collection actions” unless and until they have made “reasonable efforts” to determine if a patient is eligible for financial assistance,
  • limit charges for emergency or other medically necessary care for patients qualifying for financial assistance to the lowest amount charged to insured patients, 
  • refrain from applying “gross charges” to patients who qualify for financial assistance, 
  • have a written policy to provide emergency medical care regardless of a patient’s ability to pay, and
  • have a written financial assistance policy describing eligibility criteria, whether free or discounted care is available to low-income patients, how the hospital calculates charges, how it will publicize financial assistance, and how patients can apply for financial assistance.

To monitor and enforce compliance with the new law, the IRS recently revised the Schedule H form that nonprofit hospitals must file with their Form 990 tax returns. Schedule H, the vehicle for reporting community benefit activities, now includes questions reflecting the new requirements from the Patient Protection and Affordable Care Act.

But the IRS isn’t the only one paying attention to this issue. After the Minnesota Attorney General’s report, a California congressman asked for an investigation of Accretive Health to probe whether its practices violated other federal laws. Last week a North Carolina newspaper ran a weeklong series highlighting questions around hospital profits, and NPR’s All Things Considered featured a story on nonprofit hospitals’ “stinginess” with charity care.

Whether the new health care law will prevent scenes such as those described in the New York Times article from recurring in nonprofit hospitals remains to be seen. Davis, Curtis, and Dunbar-Hester note in their Clearinghouse Review article that the Treasury Department is developing regulations that should define exactly what constitutes an “extraordinary collection action” and will elaborate on other sections of the health care law that could curb such behavior. By anyone’s definition, embedding debt collectors among medical staff seems, at a minimum, “uncharitable.”

 

Who Gets to Decide What Low-Income Americans Eat?

DinnerWith 35.7 percent of America’s adults and one third of America’s youth qualifying as overweight or obese, we’re all getting a lot of advice about how we should be eating. This question becomes particularly tricky for low-income Americans who receive food assistance through the Supplemental Nutrition Assistance Program (“SNAP”), formerly known as food stamps. Traditionally, SNAP recipients have been restricted from using their benefits for alcohol, tobacco, household products (i.e., cleaning products or pet food), medicines, prepared food, and restaurant meals.

There is one major exception to the restaurant meal restriction, however. As Barbara Jones described in her recent Clearinghouse Review article titled Should States Allow Poor People to Use Supplemental Nutrition Assistance Program Benefits at Fast-Food Chains?, the U.S. Department of Agriculture’s Restaurant Meals Program allows elderly, disabled, and homeless SNAP recipients to use their benefits in restaurants. Fast-food restaurants would like to receive the extra revenue provided by the Restaurant Meals Program, but only a few states currently allow SNAP participants to use their benefits at fast-food restaurants. 

Some anti-hunger advocates argue that Restaurant Meals Program participants should be able to spend their benefits at fast-food outlets because many low-income Americans—particularly homeless ones—lack the food preparation and storage space necessary to cook for themselves. Moreover, some low-income communities only have fast-food restaurants and do not have any supermarkets. In these "food deserts," fast food might be the only option for many people.

Health experts argue against expanding the Restaurant Meals Program to include fast-food outlets, citing the many diseases linked to fast-food consumption. In fact, many of the diseases related to fast-food consumption (diabetes, hypertension, and cardiovascular disease) are pervasive in the disabled and elderly populations to begin with. Unsurprisingly, many advocates scoff at the idea of allowing people to use SNAP benefits to eat food that is dangerous for their health.

The Restaurant Meals Program is only one strategy being used to help feed hungry Americans. Communities across the country are trying to develop alternative programs that will increase low-income Americans’ access to healthy food. From farmers’ markets to urban gardens, creative advocates are thinking of new ways to help low-income Americans eat healthfully. That’s not to say that federal, state, and local governments are not thinking outside the box as well. The New York City Department of Health’s Healthy Bodegas Initiative is trying to increase the amount of healthy options in New York City’s food deserts, and the Robert Wood Johnson Foundation recently awarded $12 million to the New Jersey Food Access Initiative.

Clearinghouse Review will explore innovation and conflicts related to food and hunger policy in its 2012 special issue, which will be published in the fall. With articles about SNAP benefits, low-income seniors’ access to food, fairness in food production, using food banks effectively, and many other topics, the 2012 special issue of Clearinghouse Review will be a must-read for advocates looking for new ways to help low-income Americans feed their families. 

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The Ryan Budget Plan: A Path to Hunger

Crumbs on empty plateLast week, House Republicans approved a budget plan titled The Path to Prosperity: A Blueprint for American Renewal.  In his introduction to the budget plan, House Budget Committee Chair Paul Ryan argues “[t]he social safety net is failing society’s most vulnerable citizens and poised to unravel in the event of a spending-driven debt crisis.”  Unsurprisingly, the Republican budget contains many cuts to the social safety net, including cuts to the Supplemental Food Assistance Program (SNAP), formerly known as the Food Stamp Program.  The Ryan budget would cut 17 percent of the SNAP budget over ten years, beginning in fiscal year 2013. 

Despite the draconian nature of the SNAP cuts, the Ryan budget proposal is notably short on details regarding how exactly the cuts would be structured.  The only concrete proposal the Republicans offer is to convert the SNAP program into a block grant “tailored for each state’s low-income population” beginning in 2016, with benefits “contingent on work and job training.”  Block grants are fixed sums of money that the federal government gives to the states. These grants are unresponsive to changes in need and fail to provide a stimulus during economic slowdowns.

It is worth reading some of Ryan’s critique of SNAP in detail. Ryan acknowledges that SNAP “serves an important role in the safety net by providing food aid to low-income Americans,” but criticizes the program’s growth.  Ryan writes:

“Enrollment grew from 17.3 million recipients in 2001, to 23.8 million in 2004, to 28.2 million in 2008, to 46.6 million today.  According to the U.S. Department of Agriculture, “The historical relationship between unemployment and SNAP caseloads diverged in the middle of the decade … As the unemployment rate fell 1.4 percentage points between 2003 and 2007, SNAP caseloads increased by 22 percent.” The trend is one of relentless and unsustainable growth in good years and bad.  The large recession-driven spike came on top of very large increases that occurred during years of economic growth, when the number of recipients should have fallen.”  

According to Ryan, the “unsustainable growth” in SNAP participation has been driven by the program’s structure. In Ryan’s view, because states receive money in proportion to how many people they enroll, they have an incentive to enroll as many people as they can, with no incentives to make sure that SNAP recipients are working or participating in job training programs.

Let’s unpack Ryan’s assertions.  First, where is Ryan getting his numbers?  His numbers describing the relationship between unemployment and SNAP caseloads come from a March 2012 article titled ”What’s Behind the Rise in SNAP Participation?” in the U.S. Department of Agriculture’s magazine, Amber Waves.  Ryan’s quotation from the article is selective, to say the least; immediately after the language Ryan quotes describing the decline in unemployment between 2003 and 2007, the authors write that during the same time period, “[t]he number of people in poverty rose by 4 percent, indicating that economic need remained high even as unemployment declined.” 

But Ryan left that part out.

Second, do the article’s authors come to the same conclusion that Ryan does?  Not really.  It is true that, over the last decade, several pieces of legislation allowed states to be more flexible in how they administered SNAP.  As the states improved their application processes and it became easier for people to apply, more people participated in the program.  But there have also been changes in federal policy that have increased SNAP participation. As the Amber Waves authors note, several agricultural bills expanded categories of exempt assets—allowing people with retirement and educational accounts, as well as car owners, to receive SNAP benefits. Ryan also ignores the 2009 increase in benefits that was a part of the American Recovery Reinvestment Act of 2009—an increase that was always intended to be temporary and will expire in November 2013.

As the New York Times pointed out in an editorial about Ryan’s budget plan, “[a]lready, most people who get SNAP benefits use them up in the first two weeks of a month, and many turn to food banks by month’s end. Cutting benefits so sharply would lead to a significant increase in hunger, particularly among children, which would quickly create dangerous ripples through the health and education systems.” Indeed, almost half of SNAP recipients in fiscal year 2010 were children. That fact might be particularly important in Ryan’s analysis. After all, children don’t vote.

The Center on Budget and Policy Priorities has excellent resources for advocates concerned about the Ryan budget’s impact on SNAP, including a comprehensive analysis of the budget’s effects on SNAP recipients and a table describing the cuts’ state-by-state impact.  For example, in Ryan’s home state of Wisconsin, 844,000 people are currently scheduled to receive SNAP benefits in 2013.  That’s 844,000 people who would feel the belt-tightening effect of these cuts.

Clearinghouse Review: Journal of Poverty Law and Policy recognizes the importance of SNAP to legal aid lawyers and other advocates for low-income people, which is why the Review is dedicating its 2012 special issue to hunger and food insecurity.  Historically, the Review has prioritized helping advocates stay current with trends in SNAP advocacy.  The Review recently published articles about the use of SNAP at fast food restaurants and the legality of subjecting participants to new identification requirements such as fingerprinting.  The 2012 special issue will examine SNAP’s past, present, and future, as well as physical, employment-related, and environmental aspects of low-income communities that limit access to nutritious food and affect people’s overall health.  Look for the 2012 special issue of Clearinghouse Review in the fall. 

Clearinghouse Review Announces Its 2012 Special Issue Topic: Hunger and Food Insecurity

Knife and forkDuring the recent economic downturn, many American families became food insecure, meaning they had limited or uncertain access to enough nutritious food for an active, healthy life. In 2010, 40.3 million people received monthly benefits through the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps), up from 33.7 million people in 2009 and more than double the number of food stamp recipients in 2002. Participation in school meal programs also increased, and 32 million children now participate in school meal programs each day. Food insecurity is especially troublesome among older adults, given the population’s particular health and medical needs. From 2001 to 2009, the number of older Americans at risk of hunger increased by 79 percent.

The increasing prevalence of food insecurity in America has prompted Clearinghouse Review: Journal of Poverty Law and Policy to choose it as its 2012 special issue topic. Every year, the Review devotes one issue to exploration of a single topic; last year’s special issue focused on applying a human rights lens to poverty law practice, and the 2010 special issue discussed climate change and green jobs.

Helping low-income people increase their access to food through benefits programs such as SNAP, the Women, Infants, and Children Program (WIC), and the Child and Adult Care Food Program (CACPF) has long been a traditional strength of the legal services community, and Clearinghouse Review has published many articles on these topics. Recently, the Review has published articles exploring whether states should require identification requirements for SNAP participants, the use of SNAP benefits at fast-food chains, and low-income college students’ eligibility for SNAP benefits.

However, the nature of food insecurity is evolving, as are the federal and state programs that address the problem. Assisting clients with SNAP benefits has become a moving target for legal services attorneys, who are trying to help more clients get benefits in the face of state budget cutbacks that cause delays in processing times and reduce compliance with federal legal deadlines. Children, the elderly, immigrants, and people living with disabilities all face additional challenges when trying to access nutritious food through SNAP and other programs.

As the number of food-insecure Americans grows, it will not be enough for only those legal services attorneys specializing in benefits to confront the hunger problem. To end hunger in America, advocates from many disciplines—health, education, economic development, and housing, to name a few—will need to focus on food. Moreover, it will not be sufficient for these advocates to understand the changing landscape of federal and state benefit programs. To understand why so many communities are unable to secure nutritious food for all of their members, advocates need to take a close look at the communities themselves. Many low-income communities have become “food deserts” with limited access to nutritious foods. These neighborhoods also contain few safe spaces for physical activity, which has contributed to a dramatic rise in obesity over the past decade. Low-income families are also affected by food’s production, distribution, and consumption, both as workers and consumers.

The good news is that, across the country, advocates and community leaders are developing new approaches to food insecurity. Not only are they using traditional antipoverty programs in new ways, they are helping low-income people access nutritious food through farmers’ markets, community gardens, and fresh food financing initiatives. Lawyers are dismantling state-level barriers to national food programs, helping communities rezone to have more green space, incorporating the concept of a “human right to food” into their arguments, and ensuring that, as the delivery of benefits is modernized through the use of new technologies, vulnerable clients’ ability to access benefits is not compromised.. Food banks are collaborating with unexpected partners to make sure that nutritious food does not spoil before it reaches consumers. In its 2012 special issue, Clearinghouse Review hopes to showcase dynamic and diverse solutions to food insecurity from across the country so that advocates can share their expertise with one another and design new solutions to food insecurity.

If you are interested in learning more about Clearinghouse Review’s 2012 special issue, please contact Staff Attorney-Legal Editor Michele Host. The editorial team welcomes suggestions regarding topics and authors. If you or your organization is interested in sponsoring the 2012 special issue, contact Brendan Short.

 

How Should the Courts Treat Young Parents in Foster Care?

Teen and babyThanks to a certain MTV show, young parents are very much in the news, although not in the most nuanced way. The good news is that teen pregnancy has been declining; according to the National Campaign to Prevent Teen and Unplanned Pregnancy, the teen birth rate declined 44% between 1991 and 2010. Even so, according to the campaign “it is still the case that about one-third of teen girls get pregnant by age 20 and there were more than 400,000 births to teens in 2008.”

A recent Clearinghouse Review article examines problems facing a vulnerable subset of young parents: young parents who are themselves in foster care. These parents face not only the difficulties facing all young parents—lack of educational opportunity and financial stress among them—but also intense scrutiny from the social service agencies and attorneys designated as their protectors. 

The article’s authors represent young parents in foster care at New York City’s Center for Family Representation. They explore the tensions that arise when a young parent in foster care has a baby and the local child welfare agency then files a child welfare case against the young parent. In most parts of the country, when a young parent in foster care becomes a respondent in a family court case, the same child welfare agency responsible for the parent’s welfare as a foster child is responsible for proving that she is a neglectful or abusive parent.

Unsurprisingly, the child welfare agency’s double role can raise trust issues for the young parent. Because they often live in congregate placements, such as mother-child placements or maternity residences, young parents are observed more closely than parents who have the means to live independently. When court cases are filed against them, young parents often continue to work with the same agency personnel who have accused them of abusing or neglecting their children—even though those personnel may end up testifying against them in family court.

Also, because the child welfare agency has a special legal relationship with the young parent, the agency has access to her confidential medical and mental health history. Child welfare agencies sometimes include voluminous detail from young parents’ mental health histories in the initial allegations against them—even if the hospitalizations and mental health diagnoses described predate the birth of the young parents’ children by many years. Child welfare agencies almost never have this kind of access to confidential records for parents who are not in foster care, which shows how agencies can use a young parent’s foster care status to her disadvantage.

While some judges have written sympathetically about young parents who are also foster children, the courts have not found any conflict of interest inherent in child welfare agencies simultaneously taking care of a young parent as a foster child and presenting an abuse or neglect case against that young parent. Is this double role right and lawful? If not, what should child welfare agencies be doing about it?

 

Oklahoma's Anti-Sharia Amendment not OK

Flags of the WorldIn November 2010, more than 70 percent of voters in Oklahoma approved the “Save Our State” Amendment to the Oklahoma Constitution. That amendment “saved the state” by prohibiting Oklahoma state court judges from considering “the legal precepts of other nations or cultures . . . [s]pecifically, . . . international law or Sharia Law.” The ballot defined Sharia for voters as “Islamic law . . . based on two principal sources, the Koran and the teaching of Mohammed.”

The amendment was immediately challenged in federal court on First Amendment grounds. The plaintiff in the case was Muneer Awad, an American citizen, a Muslim, and the executive director of the Oklahoma Chapter of the Council on American-Islamic Relations. The U.S. District Court for the Western District of Oklahoma issued a preliminary injunction that blocked the Oklahoma State Board of Elections from certifying the results of the vote on the amendment. This decision prevented the amendment from going into effect.

Last week, the U.S. Court of Appeals for the Tenth Circuit upheld that injunction, agreeing with the lower court that Awad is likely to win his First Amendment challenge to the anti-Sharia amendment. The case now goes back to the lower court for further proceedings.

As explained by Professor Martha F. Davis and Emily Abraham in last fall’s human rights issue of Clearinghouse Review: Journal of Poverty Law and Policy, the Oklahoma amendment was merely the most extreme example of a recent wave of state initiatives against Sharia and transnational law (defined as foreign or international law). In the past two years, more than twenty states considered such legislation. At least six of those state proposals specifically targeted Sharia.

Davis and Abraham’s article, “Oklahoma’s Anti-Sharia and Other Antitransnational Proposals: A Backgrounder for Domestic Human Rights Advocates,” puts these state legislative efforts in a larger perspective. They explain that transnational law has a long, nonthreatening history in state courts. For example, state courts sometimes review claims implicating an international law such as the Hague Convention on the Civil Aspects of International Child Abduction. Occasionally a state case will involve foreign standing and treaty compliance. More generally, state courts may look to transnational law for insight or ideas. Oklahoma’s constitutional amendment would have forbidden all of these legitimate considerations of transnational law.

But what about Sharia? Sharia is broad and applies to topics as diverse as business, contracts, and social issues. Davis and Abraham explain that a written agreement could declare Sharia to be the law of the contract, causing a judge to need to consider Sharia to resolve any legal questions about its meaning. Likewise, child custody or divorce agreements may implicate Sharia. Awad himself asserted that the Oklahoma amendment would prevent a court from probating his will because it contains references to Sharia. Rather than posing a threat to Oklahoma law, these potential uses of Sharia fall within the long tradition of state courts' legitimately considering transnational law in the application of their own state laws.

The Clearinghouse Review special issue on human rights explored how legal advocates may incorporate international human rights ideas into their domestic poverty law practice. Notions such as a human right to housing, health care, or food offer a useful framework for public interest lawyers and can bolster their advocacy. In some states, antitransnational law efforts may have a chilling effect on judges’ receptiveness to this framework, but if the Tenth Circuit’s opinion is any guide, most judges will understand that international and comparative law play an appropriate and important role in our domestic courts.

 

The Equal Credit Opportunity Act: A Fair-Lending Tool for the Justice Department and You, Too

Foreclosed homeThe Department of Justice (DOJ) ended 2011 with a bang, reaching an enormous $335 million fair-lending settlement with Countrywide Financial Corporation and its subsidiaries. The record-setting settlement secures relief for more than 200,000 African American and Hispanic borrowers who were more often steered into subprime mortgage loans or were charged higher fees than were white borrowers with similar credit profiles. The proposed consent order of December 21 resolves DOJ’s claims that Countrywide’s lending practices during the housing boom of 2004–2008 violated both the Fair Housing Act and the Equal Credit Opportunity Act.

The Equal Credit Opportunity Act (ECOA) prohibits discrimination in every phase of a credit transaction such as a mortgage loan. When creditors discriminate on the basis of race, ethnicity, marital status, or another protected class, they subject themselves to civil liability for actual and punitive damages. Private citizens can bring ECOA claims, as can several authorized government agencies such as the Department of Justice and the new Consumer Financial Protection Bureau. ECOA has been on the books since 1974, but its enforcement has been minimal. The foreclosure crisis and its disproportionate impact on minority groups, however, have renewed public interest in fair-lending laws such as ECOA—and given DOJ’s landmark discrimination settlement, this revived focus has come none-too-soon.

ECOA is valuable for more than just compensating victims of discriminatory lending, as was accomplished by DOJ. Many people who were unfairly steered into subprime mortgages ultimately found themselves facing foreclosure. In the current issue of Clearinghouse Review: Journal of Poverty Law and Policy, Jennifer D. Newton and Tamara St. Hilaire of Florida Legal Services explain how advocates can use ECOA to challenge and prevent such foreclosures. The authors explain that borrowers, depending on where they live, may file a lawsuit under ECOA to prevent a foreclosure or, if a foreclosure case is already underway, may countersue under ECOA or use it as a defense against the foreclosure action. Plaintiffs may prove discrimination with direct evidence of discriminatory intent. Most courts also allow plaintiffs to meet their burden of proof with circumstantial evidence of disparate treatment or impact.

When courts allow disparate impact claims under ECOA, they look to fair housing discrimination cases for guidance. The U.S. Supreme Court will also be looking at disparate impact claims under the Fair Housing Act (FHA) later this year when it decides Magner v. Gallagher, which is scheduled for oral argument on February 29. Specifically, the Court will decide whether disparate impact claims are cognizable at all under FHA and, if so, how they should be analyzed. The outcome of Magner will likely affect how courts view disparate impact claims brought under ECOA as well.

In the meantime, the Justice Department will be appointing an independent administrator to identify victims of Countrywide’s discriminatory lending who are entitled to compensation as a result of the settlement. Those who believe they were discriminated against by Countrywide and have questions about the settlement may contact the Department at countrywide.settlement@usdoj.gov

 

Low-Income Tenants Win an Important Victory in Oregon

The Low-Income Housing Tax Credit Preservation Program’s purpose is to encourage developers to build affordable residences for low-income tenants. In this program, the federal government and the states work together; the federal government gives tax credits to state governments, and the state governments give those credits to housing developers that promise to include low-income housing units in their projects. In turn, the developers sell the credits to investors. Sadly, the tenants sometimes get lost in the complicated process of financing, constructing, and maintaining LIHTC properties. 

That’s what initially happened to tenants at a 264-unit complex in Southeast Portland when the Oregon Housing and Community Services Department decided that their homes no longer met the requirements of the LIHTC Program. After the department released the complex from the program’s requirements, the project’s owner sold it to a developer, who evicted all the low-income tenants.

Under the terms of the agreement between the original owner and the department, the low-income tenants never should have been evicted. The agreement stated that the original owner would maintain 100 percent of the project as low-income housing for 30 years and that, in order to receive low-income housing tax credits, the owner (or any subsequent owner) would regulate and restrict the way the property could be used to make sure that the original purpose of the project would survive. The owner of the property entered into those restrictions—or, in legalese, recorded a “declaration of land use restrictive covenants”—and, in return, the project received more than $2 million of LIHTC tax credits.

Years later, the project was sold. The Oregon Housing and Community Services Department determined that the project was not complying with the LIHTC program, and notified the Internal Revenue Service. The department then entered into a release with the project. The release was a crucial document for the tenants of the complex, because it said that the department and the property’s owner released one another from all of their obligations but stated that the owner or any new owner could not evict a tenant of a low-income unit for three years.

After the release was entered into, the property was sold again, and the new owner evicted the tenants. This meant that the developers received all of the benefits of the LIHTC program without providing low-income housing for the original 30-year period. (And the new owner did not even have the decency to wait for the three-year safe harbor period to elapse.)

A group of tenants represented by the Oregon Law Center and two private attorneys sued the new owner and the department, but lost at the trial court. The trial court ruled that the department’s decision to end the complex’s participation in the LIHTC program and enter into the release agreement meant that the low-income tenants had no power to enforce the terms of the original declaration.

Thankfully, in Nordbye v. BRCP/GM Ellington, the Oregon Court of Appeals disagreed and overruled the trial court’s decision. In a thorough, detailed opinion, the court explained that the release that the department signed with the complex’s second set of owners did not wipe out the original declaration. Most importantly, the court emphasized that the low-income tenants had the right to enforce the original restrictions requiring that the property be used for low-income housing. Citing an amicus brief by the National Housing Law Project, the court included the following insightful language:

. . . if failure to comply with program requirements were grounds for early release from the applicable use restrictions, it would create a perverse incentive to encourage noncompliance. An owner of a property subsidized with public funds would be encouraged to violate program requirements in order to secure early release from the LIHTC program. Once released from the obligation to maintain the property as low-income housing for the stated period, an owner would be free to charge market-rate rent or to sell the project for a profit, thereby profiting from a public subsidy without fulfilling the conditions of that subsidy.

 

This important decision is a must-read for housing advocates, and will surely keep many low-income renters in their homes.

 

Honoring Veterans by Helping to Meet Their Legal Needs

Veterans face a host of challenges, not the least of which is obtaining the benefits due them and dealing with legal issues related to family issues, credit, foreclosure, and others. An advocate need not be an expert in veterans law to identify VA benefits and refer a client to VA for assistance. By asking a low-income or elderly legal aid client if the client is a veteran, dependent of a veteran, or survivor of a veteran, those who represent poor, elderly, and disabled persons may be able to identify monetary benefits and services from the U.S. Department of Veterans Affairs (VA), and these benefits may help resolve the client’s legal issues. A quick screening guide and descriptions of some monetary and health benefits help advocates ask the right questions and refer clients to resources. Five tips may help nonmilitary attorneys represent military members better and avoid “traps for the unwary” and recognize that clients who have a military connection often get more protection and benefits through laws that apply specifically to military members.

When handling a family law case involving a party in the military, attorneys should know about pertinent rules that may be unfamiliar to the typical family law practitioner. These involve special rules for establishing jurisdiction and service of process to initiate a case; setting up custody, visitation, family support, and division of a military pension; and using the Servicemembers Civil Relief Act at any stage of a family law proceeding. With this knowledge, an attorney can both advocate better for a military client and know how to observe the special rights of a military party on the other side of a family law matter.

Assisting disabled military veterans, who risked injury and death in the service of their country, in obtaining veterans benefits is an honor. Legal aid attorneys who wish to assist veterans have many resources available to them. Pine Tree Legal Assistance’s Stateside Legal website has information for military members, veterans and their families and pro bono opportunities. The American Bar Association has established the Military Pro Bono Project. The ABA has also developed a new web-based legal resource center aimed at military families called ABA Home Front in support of First Lady Michelle Obama’s Joining Forces initiative that seeks to support military military members and their families. The National Veterans Legal Services Program also has a pro bono project called Lawyers Serving Warriors, through which attorneys can volunteer to represent veterans.

To gain insight into the many issues facing veterans and innovative solutions, read the Clearinghouse Review: Journal of Poverty Law and Policy’s September-October 2009 special issue Legal Needs of Military Veterans, Servicemembers, and Their Families. The special issue includes best practices and creative approached to helping our military members and veterans in many contexts and fora, including military benefits, and family and consumer law. Barton F. Stichman, who litigated the Sabo case on behalf of the National Veterans Legal Services Program, contributed to the issue, writing Advocating Benefits for Veterans. The issue provides guidance on representing veterans before the U.S. Department of Veterans Affairs (VA), discusses laws such as the Veterans Judicial Review Act of 1988, and the Servicemembers Civil Relief Act.

For more information on the Servicemembers Civil Relief Act, see the ABA-sponsored book, A Judge’s Benchbook for the Servicemembers Civil Relief Act by Colonel John S. Odom, Jr. USAF Retired (also see free checklist by Mark E. Sullivan, A Judge’s Guide to the Servicemembers Civil Relief Act).

Kathleen Donahue McNally coauthored this blog post.

 

 

Update on Veterans Law Developments

VeteranMuch has happened since we celebrated Veterans Day in 2010. The Don’t Ask, Don’t Tell law is officially dead. The U.S. Department of Defense, as the result of a settlement, has agreed to review disability ratings from 2001 to 2009 that wrongly denied benefits to veterans separated from service due to Post-Traumatic Stress Disorder (PTSD). The U.S. Department of Veterans Affairs (VA) was found by a federal appeals court to have violated the due process rights of veterans through its failure to timely treat veterans and process their medical claims and ordered make systemic changes in its regional office. The U.S. Departments of Defense and Veterans Affairs have agreed to share medical records—previously prohibited by regulation—in a way that facilitates health care for military servicemembers as they move from active service to veteran status. A Wisconsin county is the latest jurisdiction to create a special veterans court to ensure that offenders who are veterans get the medical treatment they need rather than follow a well-trod pathway to prison. The current Administration has continually pushed the private sector to create more jobs for veterans and hire more veterans for current jobs. Legal aid lawyers can help servicemembers, veterans, and their families by providing legal services where possible and by being aware of legal resources available and laws aimed specifically at servicemembers, veterans and their families.

Don’t Ask, Don’t Tell

Thousands of servicemembers were legally freed from the burden of hiding their sexual orientation on September 20, 2011, the date the Don’t Ask, Don’t Tell Repeal Act of 2010 (signed on December 22, 2010) became effective. As the President stated on September 20, "[W]e are not a nation that says, 'don't ask, don’t tell.' We are a nation that says, 'Out of many, we are one.'" While inequality is likely to remain, lives have already been changed. The Defense Department in its Quick Reference Guide to the repeal act has, as of October 28, 2011, identified 14 benefits for which servicemembers may designate beneficiaries including same sex partners.

News on help for Veterans with PTSD

That military veterans suffer from of Post-Traumatic Stress Disorder (PTSD) is not news. That the U.S. Departments of Defense and Veterans Affairs have woefully inadequate procedures probably is not a surprise either. But recent court victories by advocates are helping to change that. The Department of Defense on its website announced that it is “re-evaluating … disability ratings for some Veterans medically separated between September 11, 2001, and December 31, 2009, to ensure a correct disability retirement determination was made.” This action is required under a settlement agreement reached in Sabo v. United States. The National Veterans Legal Services Programbrought the suit the result of which will ensure that over 2,000 U.S. military veterans who served in Iraq and Afghanistan and who were medically discharged from the military after a diagnosis of PTSD will finally receive the military benefits due them. The settlement agreement was preliminarily approved by a U.S. Federal Court of Claims August 12, 2011; final approval is expected by January 2012.

The Ninth Circuit Court of Appeals, in a May 2011 scathing opinion, castigated the U.S. Department of Veteran Affairs for its delays, averaging four years, in processing veterans’ mental health claims, holding that the VA violated veterans’ due process rights through its failure to timely treat veterans and process their claims. Noting that in many cases timely treatment is a matter of life or death, (the court cited current suicide rates amongst servicemembers and veterans) the court ordered the VA to develop a system-wide plan to reduce delays in delivering mental health care to veterans. The court stated that it would have preferred the VA or Congress to take action, but found that the VA’s failure to develop procedures to handle the influx of claims from Afghanistan and Iraq war veterans left many veterans without treatment for years—a violation of due process under the Fifth Amendment.

State courts are seeking ways to help veterans with PTSD get the treatment they need instead of merely sending them to jail. Judges in Green Bay, Wisconsin, are working towards establishing a special court for military veterans. If this court is established in the next month as planned, it will join a list of about 50 special veterans courts created around the country over the past three years. The courts were developed because “military veteran offenders are more in need of treatment than prison.” The goal of the special court is to find the most effective way of dealing with veterans’ mental health issues, particularly PTSD. While some special veterans courts accept only combat veterans whose offenses have resulted from PTSD, others accept all veterans.

Unemployment and Homelessness

Employees who leave their jobs to work in the armed forces often cannot regain their jobs or retain benefits. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is designed to protect eligible military members from illegal employer action. But the American Bar Association (ABA) found that veterans still face barriers to employment and reemployment and recently adopted a resolution urging Congress to amend USERRA. The resolution, recommended by the ABA’s Standing Committee on Legal Assistance for Military Personnel, would require employees to provide certain reasonable accommodations for returning veterans with combat injuries, make unenforceable employment agreements that require arbitration of USERRA disputes, and authorize attorney fees.

President Obama has recognized that the unemployment rate among veterans is unacceptable. The Obama Administration recently launched two initiatives to support veterans and their families. President Obama’s Veterans Employment Initiative challenges the private sector to hire veterans and the President proposed a tax credit for businesses that take up the challenge. (The tax credit has been suggested before.)

Veterans are twice as likely as the general population to become chronically homeless. Many resources can help veterans improve their finances and access supportive housing so that they can have a place to live and can lead healthy, stable lives. Greater availability of two innovative legal programs—alternative sentencing statutes and veterans courts—would link at-risk veterans to life-saving treatment and lower their risk of homelessness.

Kathleen Donahue McNally coauthored this blog post.

 

Is the United States Moving Toward a Human Right to Housing?

DoorMost of the news we hear about housing in the United States is bad. Homelessness, evictions, and foreclosures are omnipresent, and housing assistance is hard to find. In some parts of the country, homelessness is being criminalized—either directly through laws that criminalize sleeping and camping in public places, or indirectly, through laws that try to hide homeless populations, such as the Orlando ordinance that requires organizations to obtain permits to feed groups of twenty-five or more people in city parks. (Because the Orlando ordinance also states that only two permits a year will be issued for any one park, it means that organizations conducting large-scale feedings have to move from place to place—making it difficult for homeless people to establish a routine.) Debates about homelessness have even surfaced at Occupy Wall Street and other Occupy demonstrations across the country, where some protesters welcome homeless people, and others worry that their presence adds unwelcome complications to the Occupy movement. 

But there has been some good news about housing in 2011, and it’s from an unexpected corner: human rights law. The United States has long lagged behind other countries when it comes to recognizing a human right to housing. The United States has signed but not ratified the International Covenant on Economic, Social and Cultural Rights, the major international human rights instrument acknowledging “the right of everyone to an adequate standard of living . . . including adequate food, clothing, and housing.” Unlike other countries, such as South Africa, the U.S. Constitution does not provide its citizens with such a right, and efforts to push the U.S. Senate to ratify the International Covenant on Economic, Social and Cultural Rights have stalled.

All of this background makes the events of 2010 and 2011 seem even more exceptional. As Eric S. Tars and Déodonné Bhattaraiwrite in the 2011 Special Issue of Clearinghouse Review: Journal of Poverty Law and Policy:

Over the course of 2010 and early 2011 an extraordinary series of events opened the door to discussion about housing as a human right in the United States. The Universal Periodic Review began with a nationwide consultation involving thousands of community participants and culminated in an international review of human rights in the United States in Geneva in November. At this review the U.S. Department of Housing and Urban Development (HUD) affirmed for the first time the relevance of an international human rights mechanism to its role in setting domestic housing policy. Five months later, again for the first time, the U.S. Department of State, in consultation with HUD, supported recommendations on affordable housing and protecting the rights of homeless persons, among others, in response to the Universal Periodic Review. The following week the State Department announced a reembrace of economic and social rights, including the right to housing, after seventy years of treating them as second-class rights.

This remarkable progress shows how U.S. poverty law advocates can use international human rights mechanisms—such as the Universal Periodic Review—to help their clients. The 2011 Special Issue of Clearinghouse Review, titled Human Rights: A New (and Old) Way to Secure Justice, contains articles from practitioners and academics demonstrating how poverty law practitioners can harness the power of international human rights law to work for their clients. With case studies from across the country and as far away as Australia, Clearinghouse Review’s 2011 Special Issue is a must-read for any poverty lawyer trying to approach his or her work from a new angle. It should as well be essential reading for members of Congress as they consider the final fiscal year 2012 levels of funding for HUD’s affordable housing programs. Without the dollars necessary to sustain these housing programs, a human right to housing is essentially meaningless to the millions of families in need.

 

Home Health Aides Deserve Minimum Wage and Overtime Protections

Home health aide with patientWhen you picture a home health aide, what do you see?

Do you see someone sitting in a comfortable chair, chatting with a perfectly healthy companion while they both chortle at Dancing with the Stars? Or do you see a trained professional working with a patient—helping with essential daily activities such as dressing, bathing, medication reminders, walking, and transferring the patient from bed to wheelchair?

Most Americans recognize that home health aides fall into the second category. Unfortunately, federal law does not. Home health aides are excluded from the minimum wage and overtime protections of the federal Fair Labor Standards Act because of something called the “companionship exemption.” Designed in the 1970s, this exemption was slipped into the law to ensure neighborhood babysitters and sporadic workers would not be given federal employment protections. Unfortunately, the exemption has also excluded the professionalized home health aide workforce as well—many of whom work full-time.

Home health aides are trained professionals who do demanding work that is increasingly skilled. To work for home health agencies, home health aides must receive many hours of classroom training (which is regulated by state law) either through a home care agency or a private school. Their work encompasses everything from feeding, bathing, and toileting patients to assisting with medication and guiding patients through range-of-motion exercises.

The lack of minimum wage and overtime protections for home health aides hurts more than just workers. Consumers inevitably suffer as well. Because home health agencies are not required to pay home health aides overtime, home health aides work extremely long hours—even though many home health care agencies are for-profit corporations that charge customers considerably more than they pay their workers. This leads to a stressed-out, overtired workforce that is more likely to make mistakes. Unsurprisingly, the long hours and low pay also lead to heavy turnover among home health aides, which results in less continuity of care for patients.

A few years ago, the Supreme Court rejected efforts to dismantle the companionship exemption. The Labor Department has repeatedly signaled its willingness to write new regulations that would extend the Fair Labor Standards Act’s protection to home health aides (amending the regulation is on the Labor Department’s agenda for this year), but it has repeatedly failed to do so. Earlier this year, however, legislation that would end the companionship exemption was introduced in the U.S. House and Senate

In the meantime, states and localities are providing home health aides with relief. In some cities, such as New York, home health aides are unionized and covered by living wage laws. The states are also making progress. Many states require that agencies pay home health aides the minimum wage, and some require overtime as well. An article in the November-December 2011 issue of Clearinghouse Review: Journal of Poverty Law and Policy will explore the changing landscape of law and policy affecting home health aides and analyze a recent Pennsylvania Supreme Court case upholding a section of Pennsylvania’s minimum wage law requiring home health agencies to pay overtime to their employees.

 

The 2011-2012 U.N. Women Report Shows How to Apply Human Rights Law

Progress of the World's WomenAmerican poverty lawyers of all specialties often hesitate before using international human rights arguments and publications in their daily work, and for good reason: the American bench has a decidedly mixed track record when it comes to citing international human rights as persuasive authority. But the 2011-2012 report on progress of the world’s women by U.N. Women, the United Nations’ organization for gender equality and women’s empowerment, is a valuable tool for women’s advocates trying to incorporate human rights standards into their practice. Progress of the World’s Women: In Pursuit of Justice, makes it clear that international human rights publications can provide advocates with useful arguments, information, models, and contacts for future collaborations—bolstering advocates’ work even if international human rights are never explicitly mentioned in the courtroom.

Appropriately enough for lawyers, U.N. Women’s new report focuses on the impact that laws and justice systems have on women and girls around the world. The authors scrutinize legal barriers that women have to face, as well as the innovative ways that advocates are devising to rip them down. This document can be a helpful resource in several respects:

  • The report discusses The Convention on the Elimination of All forms of Discrimination against Women at great length and incorporates the convention into its discussion of women’s issues. Although the United States has only signed, not ratified, this treaty, it has been ratified by 186 U.N. Member States and is often recognized as persuasive by American judges. The report prompts advocates to think about using the convention in new ways.
  • Each chapter of the report explores justice-related topics as well as monumental cases that have changed women’s lives, and each section is illustrated by statistics and studies that advocates can refer to in briefs or policy campaigns. For example, the first chapter, Legal Frameworks, discusses women’s struggle to achieve equal pay for equal work, noting that “[b]ased on available information from 83 countries, the ILO reports that women are generally paid between 10 and 30 percent less than men.” This upsetting statistic could be useful for women’s advocates working on equal pay issues; similarly helpful statistics are omnipresent throughout the report.
  • Whether discussing noteworthy cases, legal pluralism, or violence against women, the U.N. Women report constantly refers to organizations and government entities that are working to improve justice for the world’s women. Reading the U.N. report can provide advocates with new models for their own work, as well as potential allies in other jurisdictions.

For more information on how to incorporate human rights arguments into your practice, watch out for the 2011 Special Issue of Clearinghouse Review: Journal of Poverty Law and Policy, which will be available in October. In this year’s special issue, authors from the University of Pennsylvania’s Transnational Legal Clinic, The Opportunity Agenda, Columbia University’s Human Rights Institute, The Shriver Center, Coalition of Immokalee Workers, Northeastern University’s Program on Human Rights and the Global Economy, the National Law Center on Homelessness and Poverty, the Legal Assistance Foundation of Metropolitan Chicago, and California Rural Legal Assistance, as well as two Australian public interest organizations—the Federation of Community Legal Centres and the Public Interest Clearing House—will discuss new and innovative ways for legal services lawyers to use international human rights to advance justice and equal opportunity at home.

Medical-Legal Partnerships Help Kids Succeed

Child on playgroundChildren with mental health problems are often treated like troublemakers at school. Without the budgetary resources to train teachers and staff about mental illness, schools frequently punish or suspend children with mental health problems – never stopping to consider whether their problematic behaviors are symptoms of mental illness rather than simple acting out. Thankfully, more and more legal services providers are creating medical-legal partnerships dedicated to representing children with mental health problems who need assistance to obtain appropriate educational services.

Lucas Caldwell-McMillan, an attorney at Legal Services of Eastern Missouri, manages one such medical-legal partnership, the St. Louis Children’s Health Advocacy Project. Caldwell-McMillan recounts the collaborative effort that was necessary to obtain the appropriate medical and educational services for two St. Louis kindergarten students in the current issue of Clearinghouse Review. The Individuals with Disabilities Education Act requires school districts to follow a carefully delineated set of procedures when students exhibit symptoms of mental illness or their parents request special education evaluations. Caldwell-McMillan’s clients were repeatedly suspended because of behavioral problems. The school district refused to provide the students with special education evaluations even though their parents requested the evaluations and the students were receiving mental health services outside of their schools. Through the efforts of Caldwell-McMillan and his colleagues—both at Legal Services of Eastern Missouri and Grace Hill Murphy-O’Fallon Health Center, where the students were diagnosed with attention deficit hyperactivity disorder and other mental health disorders—the school district agreed to conduct special education evaluations for both boys as well as intensive behavior management and tutoring services.

The St. Louis Children’s Health Advocacy Project is not alone in its approach. Legal Services of Greater Miami also participates in a Children’s Health Advocacy Project with South Miami Children’s Clinic. Kevin Probst, an Equal Justice Works Fellow at the Miami Children’s Health Advocacy Project, is currently representing an honor roll student with a history of panic attacks and anxiety whose grades declined after she was bullied at school. The school did not protect the student from the bully; instead, the school removed the student from a magnet program due to her declining grades—causing the student’s mental health to deteriorate even further. After unsuccessfully representing the student before her school district, Probst is now filing a due process complaint for her.

The St. Louis Children’s Health Advocacy Project and the Miami Children’s Health Advocacy Project are both part of a network of medical-legal partnerships coordinated by the National Center for Medical-Legal Partnership. The Partnership’s roots reach back to 1993 and the Medical-Legal Partnership for Children at Boston Medical Center, which worked to prevent low-income sick children from becoming sicker because of inadequate nutrition, utility shut-offs, and mold. Today, the National Center for Medical-Legal Partnership provides support for medical-legal partnerships across the country. The story of the National Center for Medical-Legal Partnership’s founding emphasizes that children have always been an important part of the medical-legal partnership movement.

The July-August issue of Clearinghouse Review will feature Medical-Legal Partnership: Evolution or Revolution?, written by authors who are intimately familiar with medical-legal partnerships and the National Center for Medical Legal Partnership: Pamela Tames, Colleen Cotter, Suzette Melendez, Steve Scudder and Jeffrey Colvin. This comprehensive look at the past, present, and future of medical-legal partnerships confirms that they can provide cost-effective assistance for clients of any age.

 

Americorps*VISTAs: Our Secret Weapon in the War on Poverty

In honor of Americorps week, the Shriver Center would like to recognize the role that Americorps*VISTA members play in helping us to be creative and effective, and to highlight the significant contributions VISTAs make in the Shriver Center’s work to advance social and economic justice.

As a cost-sharing partner to the federally-funded Americorps*VISTA program, the Shriver Center currently has seven ”volunteers in service to America,” each of whom dedicate themselves for one year to building the Shriver Center’s capacity to develop real-world solutions to poverty. Because the needs of low-income people are constantly evolving, the Shriver Center's understanding of the policy environment must be current, and its advocacy efforts must constantly evolve. Through research and outreach, VISTAs help the Shriver Center generate a dynamic information loop in which current information from direct service providers and the low-income people they support is analyzed and applied to help decision makers formulate meaningful approaches to addressing poverty. VISTAs also help the Shriver Center build coalitions with key stakeholders, provide valuable train-the-trainer sessions, and generate reports, websites, and other tools that advocates can use to implement solutions. In addition, VISTAs help raise funds for the Shriver Center, recruit volunteers, and help the Shriver Center improve its advocacy and communication programs.

The VISTAs are currently working on seven projects designed to help the Shriver Center make progress on improving school performance and high school graduation rates, increasing employment and other economic opportunities, increasing financial stability for families, improving access to safe and affordable housing, ensuring healthy futures, and enhancing the capacity of advocates to delivery legal services to low-income people. Each VISTA brings his or her own skills and passion to furthering the Shriver Center’s mission. Here is a snapshot of our current Americorps*VISTA members and the many ways in which they are contributing to the Shriver Center’s success.

Ensuring safety, academic success, and school completion for children and youth who are parents, expectant parents, or survivors of domestic or sexual violence
Hannah Green, the VISTA for the Women’s Law and Policy Project, works on a variety of issues that affect women and children. One of Hannah’s main projects is the Ensuring Success in School Initiative. Under this project, she coordinates a coalition of educators, social service providers, students, and advocates who are working to address barriers to school success and completion faced by students who are parents, expectant parents, or survivors of domestic or sexual violence. Hannah is also helping to develop curricula for school personnel on how to recognize and respond to these students. 

Promoting housing justice
The recent housing crisis has shown Americans the importance of preserving affordable and safe housing and protecting low-income homeowners and renters from foreclosure. As the VISTA for Housing Justice, Eli Wade-Scott’s projects are focused on safeguarding quality, affordable housing for low-income families. Eli serves as a principal researcher of local, state, and national housing policies and their potential impact on the housing needs of low-income households. In support of the Safe Homes Initiative, Eli also develops user-friendly materials for advocates and survivors of violence so that they can use state and federal laws to protect their housing and safety. 

Bringing attention and financial support to the issue of poverty in America
Our External Affairs VISTA, Alexandra Seabrook, advances the Shriver Center's capacity by building a Shriver Center social and mainstream media program that serves policymakers, media, and other advocates with information on issues affecting low-income people. Alexandra also helps conceptualize, plan, and coordinate fundraising and community outreach events. From a grassroots Facebook campaign to a large-scale raffle, Alexandra has helped raised over $20,000 in the few months she has worked at the Shriver Center. 

Training direct service providers and advocates
Since the 1960s, the Shriver Center has provided advocates around the country with the information and training they need to ensure social and economic justice for their low-income clients. Kathleen McNally, our VISTA for Communication Programs, develops content and provides editorial assistance for the Shriver Center’s bimonthly journal, Clearinghouse Review: Journal on Poverty Law and Policy. Kathleen also assists with marketing and outreach efforts designed to increase advocates’ access to the important resources available from the Shriver Center. 

Addressing barriers to financial stability
One in five American households is asset poor, meaning they lack the resources to sustain themselves at the Federal Poverty Level for three months if all sources of outside income ceased. The current recession has revealed how many Americans will fall into asset poverty in the absence of strong policies to increase financial stability and asset building opportunities. Kelly Ward, the VISTA for the Asset Opportunity Unit, works to advance emerging strategies focused on asset building. Kelly is also involved with coordinating and writing recommendations for the Financial Education Workgroup to increase financial literacy among Illinois students. 

Ensuring health care equity
Rachel Gielau, the Healthy Futures VISTA, works with the health care advocates at the Shriver Center to promote quality, affordable, and accessible health care for all. Rachel’s projects take her into the community as she educates consumers about health care reform and gathers personal stories from people who have had difficulty accessing care. Rachel also contributes to Shriver publications describing the effects of the Affordable Care Act on low-income families.  

Investing in our workforce
As the Employment and Training VISTA, Jessica Palek works to ensure access to employment and career advancement opportunities for people living in poverty. Jessica partners with the Chicago Jobs Council to develop the Illinois Works for the Future Campaign, which seeks to align state strategies in workforce development and economic development and to ensure that these policies and programs are responsive to the needs of disadvantaged populations. Jessica researches and drafts communication on innovative job training and education strategies for people with barriers to employment. She also contributes to the development of an unemployment insurance manual resource tool aimed at assisting individuals apply for these benefits. 

The collective work of the Americorps*VISTA members strengthens and supplements the work of the Shriver Center’s staff. In addition to moving the Shriver Center advocacy agenda forward, the VISTAs help to build partnerships and internal capacities that are strengthening the Shriver Center's financial and staff resources and helping us make progress towards our organizational goals for long-term sustainability. The Shriver Center is grateful for the excellent work of all of the VISTAs who work in service to America to advance social and economic justice.

 

Poverty Law Advocates Are Wrestling with Ethics Questions in Their Legal Aid Practice

Poverty law advocates face unique ethics questions. Sometimes these questions are on the front burner; sometimes ethics issues recede as attorneys face the daily crises of keeping people housed, helping clients get orders of protection, or assisting in applications for unemployment insurance benefits. But the ethics questions never go away entirely, and the traditional resources available to resolve the questions often don’t seem entirely relevant. In fact, these resources can seem like they’re written for advocates in a parallel universe.

In 2011 the editorial team at Clearinghouse Review: Journal of Poverty Law and Policy hopes to help advocates find their way through the ethics thicket with contributions in print or online from experienced poverty lawyers who’ve grappled with the myriad ethics issues that arise in representing low-income clients. As part of our regular outreach to readers, Clearinghouse Review conducted an online survey December 2010–February 2011, to find out which ethics questions advocates encounter in their daily work.

We asked seven questions about the ethics issue that readers encounter every day. Those of you who responded said that in day-to-day practice ethics questions most often arose out of “conflict of interest” issues and in determining case strategy when client competence was an issue. The most prevalent conflicts of interest were those between program clients and those between family members. Slightly more than half of respondents stated that they faced unresolved ethical quandaries in their practice, while slightly less than half did not. Two-thirds answering the survey found that the Rules of Professional Responsibility were inadequate in addressing their particular needs, citing the failure to address conflict of interest questions when representation is of limited scope, when the respondent’s legal aid organization is the only recourse for the prospective client, and when the client has competency issues. The substantive areas in which ethical questions arose most often were family law, estate planning and probate, and also housing law.

Survey Responses

A. Ethics Questions Faced. We asked survey respondents to choose from six categories (including “other”) in answering the following question:  “What ethics questions do you see in your practice?”

  • 80% chose conflict of interest, with slightly more of those conflicts occurring among program clients (62%) than among family members (58%).
  • 69% found “client determination of case strategy when competence is in question” to be an issue.
  • 58.3% encountered lack of truthfulness by clients or witnesses in documents or before a tribunal.
  • 51.5% found supervisions of lawyers who are less experience, paralegals and nonlawyers to pose ethics issues.
  • 18% chose “other” ethical questions.

Answer Options

 

Response Percent

Conflict of interest (e.g., parent vs. child; please select the type of conflict on the next question)

80.6%

Among family members (e.g., parent and child)

58.3%

Between program clients

62.1%

Other

18.4%

Preservation of confidentiality

48.5%

Clients' or witnesses' lack of truthfulness, whether or not intentional, to a tribunal or in documents

58.3%

Supervision (of less experienced lawyers, paralegals or nonlawyers)

51.5%

Client determination of case strategy when competence is in question

68.9%







Respondents who chose “other” ethical questions were asked to specify those ethical quandaries. Many elaborated upon the number one concern cited above—conflict of interest—and cited the difficulty in determining whether to accept a case in the face of a possible conflict when the legal aid organization was the only recourse for the prospective client. Other ethical questions included whether providing information or helpline advice created an attorney-client relationship, and how to interpret rules governing ghostwriting pleadings. Survey respondents also commented on client competency (second in popularity above). Those who commented found that client incompetency—whether arising from mental illness, dementia, Alzheimer’s or something else—was an issue in signing retainers, determining case strategy, or that it often was a source of conflict within families. Also cited were communications with pro se opponents, reporting abusive behavior by attorneys towards indigent clients, and client action that might be illegal.

B. Conflict of Interest. Participants were asked to choose from two categories and “other” in answering: What types of conflict of interest do you see?

  • 76% of readers chose conflict of interest among family members.
  • 78% of readers chose conflict interest among program clients.
  • Close to 10% chose “other” types of conflict of interest.

Readers choosing “other” types of conflict of interest listed conflicts between tenants, facility residents, and co-counseling legal aid organizations. Also cited were conflicts between legal aid organizations and pro bono conflicts panels that have prohibited the legal aid organization from providing legal assistance, but whose volunteer attorneys seek that organization’s help anyway. Conflict among coworkers was also listed as causing ethics questions.

C. Unresolved Ethical Quandaries. Participants were asked the open-ended questions of: Does your program face unresolved ethical quandaries?

Respondents were close to evenly divided on this question:

  • 51% said Yes
  • 49% said No.

Respondents who said that their program faces unresolved ethical quandaries were asked to be specific. Many  had questions about conflicts of interest between past clients and prospective clients and whether limited-scope representation was enough to create a conflict. Should legal service providers who are the sole resource in the area turn away clients because of conflict of interest concerns? If former clients do present conflict questions, does that mean recurring issues will always be resolved in former clients’ favor? Specific issues cited were:

  • Conflicts when an organization has provided limited representation (such as phone information or advice, help with forms) to one client and another client seeking full representation has divergent interests. What are the duties to former clients? Does limited representation create a potential conflict? How long does a past client present a potential conflict?
  • Conflicts when an organization has given full representation to a past client and needs to take on a client with opposing interests. What are duties to former clients? This was seen as particularly troubling in family law cases, especially when representing spouses. This was a problem in domestic violence cases as well as in cases where one spouse is represented on a limited issue, such as a consumer issue, and the other spouse seeks representation for a divorce. Other examples were co-tenant family members seeking to evict each other.
  • Who is the client when the legal service organization is representing a minor—the parents or the minor?
  • When representing clients who are deemed incompetent or have mental health issues, when, if ever, is it okay to make decisions for them? Should you have them sign a retainer? What happens when the client’s family members squabble over the course of action?
  • What is the duty of organizations that provide the sole resource in area and are pressured to take all cases?
  • What are the requirements in building firewalls?
  • How do you balance quantity of case load versus quality of representation?

D. Participants were asked “Do the Rules of Professional Responsibility address the ethical questions that arise in your practice”?

  • Two-thirds said Yes
  • One-third said No.

Those who answered “no” were asked what changes should be made and to identify additional issues the Rules should address.

1.      Regarding changes, a few respondentscommented that the Rules are ambiguous; one person commented that the rules should not allow different legal services offices to give advice to both parties in a case.

2.      Regarding additional issues that the Rules should address, survey respondents commented that the Rules:

  • Do not address issues that arise in the civil legal aid area, in particular that clients may have no alternative to the legal aid organization from which they are seeking representation.
  • Do not address high-volume, limited-resource legal aid providers.
  • Do not define the term “client.” Many legal aid organizations provide limited representation through hotlines and clinics and online pleadings. Does this limited representation create a potential conflict?
  • Do not address issues in which the client has mental health issues, is incompetent due to illness such as dementia or Alzheimer’s, or has a substance addiction. When is it appropriate to get a retainer? Who determines case strategy? What happens when the client is uncooperative? What happens if family members disagree with case strategy?

E. Finally, practitioners were asked “In what substantive areas of your program’s practice do the most ethics questions arise.” Many of those responding mentioned multiple areas of law in which ethics questions arise.

·         Almost half of those surveyed listed family law as an area in which most ethics questions arose. This includes domestic violence as it was sometimes included within family law.

·         Over one-third of those surveyed chose housing law (including landlord/tenant issues, family conflict over housing).

Other areas identified were public benefits/welfare, mental health, incompetency (including third parties calling on “behalf” of a client), and working with persons with disabilities. The following issues were each chosen by one or two respondents: consumer, immigration, medical assistance, education, untruthful clients, torts, tax, and disaster assistance.


F. Respondents were asked to give information about themselves. Thirty-two respondents did so. Of the thirty-two that responded about equal numbers (7) hailed from the Northeast, Midwest and South. Four were from the Northwest and four from California. Twenty-three of twenty-five respondents were LSC-funded organizations.

What’s your experience with ethical quandaries? Does your program have a process for resolving them? We welcome your comments and questions, which will inform our editorial process and help us to develop useful content for future issues of Clearinghouse Review.

 

Sargent Shriver: Legal Services as Peace Building

Sargent ShriverThe passing of Sargent Shriver brought about a satisfying outpouring of tributes. His personality was a unique combination of larger-than-life and down-to-earth. He came annually to our fund-raisers in the late 1990s and early 2000s, and I had a chance to see him in action. He clearly loved people. And they clearly loved him. His constant message was both upbeat and demanding: “What have you done today to make the world a better place?” he would ask with a gleam in his eye, conveying his confidence that you not only could do it but also would love doing it. People left with an excitement about being of service.

Shriver was a brilliant thinker and tactician. He launched many life-changing programs that are still vibrant: good ideas created to tackle real problems discerned at the community level. They were launched with tactical skill, pragmatic good sense, and that rare Shriver energy—upbeat and demanding. These ideas flowed from Shriver’s values and his big-picture strategic vision that transcended his own time and place and set of circumstances and generated staying power.

Among those transcendent values were peace and peace building. Joby Taylor, who directs the Shriver Peaceworker Program at the “other” Shriver Center, located at the University of Maryland–Baltimore County, published a beautiful tribute that highlighted Shriver’s compelling concept of practical idealism: “[B]ecause service highlights our common humanity even as it solves real and pressing problems, it is a primary pathway to peace. . . . The experience of working alongside others and solving problems … instills in us a sense of the usefulness of our idealism.” Amen. Joby’s main focus is the Peace Corps and service learning, but he was describing the best aspects of legal services work, too.

The aspect of peace building that revealed itself in Shriver’s original vision for legal services was an eyes-open realism about power. Shriver located legal services within community action agencies. The lawyers were not only to represent community members in court to assure them equal access to civil justice but also to represent community leaders and the community itself in the solution of wider problems identified locally. The lawyers were to bring their skills to bear to increase the power of community interests to be players on issues of policy and social systems that might affect them.

This was a realistic understanding about producing peace in spite of conflict. Peace will not come if people experience inevitable and constant defeat in public policy matters, and peace cannot be manufactured by eliminating all conflict. No matter how much society ameliorates the losers, they eventually become frustrated and dangerously uninterested in legitimate policy processes. The tension between haves and have-nots, and between groups with competing interests, is a constant feature of the human condition. Conceding the presence of conflict, Shriver concentrated instead on promoting a fair process to deal with conflict. Providing lawyers, with their expertise and advocacy skills, to serve low-income communities in public policy conflicts was a way to level the playing field. Low-income communities would have an improved chance to assert their interests, to win their share, to influence outcomes—to be players on issues that affect them. And, feeling empowered, they will invest in the process, tolerate setbacks, and have the confidence to resolve conflicts through compromise. Peace proceeds from arm’s-length handling of public policy conflicts, and this brings low-income communities into the flow of American life. Practical realism indeed.

Fifty years later, legal services programs are vindicating Shriver’s moral vision of building peace through service. They are also recognizing the lasting wisdom of his insight that, by building the power of communities to be players in policy debates on issues that affect them, legal services lawyers build peace in a very realistic way.

This blog post will also be published as a letter to subscribers in the January-February issue of Clearinghouse Review: Journal of Poverty Law and Policy.

 

 

Limited-English-Proficient Clients Face Daunting Challenges Even with Broad Legal Protections

LanguagesMercedes Cruz, a Spanish-speaking mother of three in New York City, depends on public assistance benefits for survival. But ever since Ms. Cruz opened her public assistance case in 2007, her public assistance office has failed to provide her with a Spanish interpreter at her appointments. Her repeated requests for a Spanish-speaking caseworker have also been denied. Additionally, the office has frequently mailed Ms. Cruz important documents in English. Because Ms. Cruz could not understand the documents, she missed multiple deadlines – nearly resulting in the closure of her public assistance case. 

Ms. Cruz is now a plaintiff in a pending lawsuit brought by Legal Services NYC seeking proper enforcement of The Equal Access to Human Services Act of 2003 (Local Law 73). Local Law 73 is a New York City law requiring the city’s Human Resources Administration centers, which administer public assistance, food stamps, and Medicaid benefits in New York City, to provide limited-English-proficient (LEP) clients with translation and interpretation services. On paper, New York City’s LEP residents should be receiving adequate translation and interpretation services whenever they encounter city agencies. Not only are LEP New Yorkers protected by Local Law 73, but in July 2008 Mayor Michael Bloomberg signed Executive Order 120, which requires all city agencies providing direct public services to ensure that LEP clients receive appropriate translation and interpretation services. Executive Order 120 also requires city agencies to develop and implement language access policies. 

Despite all of these legal protections, advocates continue to find that New York City’s LEP residents are being denied language assistance when they seek access to housing, health care, and public benefits. Accordingly, in August 2009 Legal Services NYC filed its lawsuit in state court on behalf of Ms. Cruz, and five other individual plaintiffs. In December 2009 Legal Services NYC added six more plaintiffs to its case, including MinKwon Center for Community Action, a Flushing-based group advocating on behalf of Korean Americans. Legal Services NYC now anticipates that depositions will begin in January 2011.

Ms. Cruz’s story is very familiar to attorneys and advocates who work with low-income LEP clients. Low-income LEP clients face challenges at every turn, even though Title VI of the Civil Rights Act of 1964 forbids discrimination on the basis of individuals’ national origin – which includes the languages they speak. Accordingly, Title VI requires programs that receive federal assistance to provide LEP individuals with appropriate language access services. These services can include interpretation at meetings and court appearances as well as the translation of relevant documents. 

Any entity that receives federal funding, either directly or indirectly, is subject to Title VI, including the prohibition on discrimination on the basis of national origin. As a recent New York Times article discussed, police departments are subject to Title VI if they receive federal grant money. Two other groups of programs subject to the requirements of Title VI are state and county court systems and legal aid offices that receive federal funding. In December 2004 the Legal Services Corporation (LSC) published a helpful guidance document outlining LSC programs’ obligations toward their LEP clients. The May-June 2010 issue of Clearinghouse Review: Journal of Law and Policy contains three articles examining language access issues that are essential reading for legal aid attorneys or any practitioner representing LEP clients. In “Language Access in State Courts,” Laura K. Abel explains why Title VI obligates state and county courts to provide competent language access services to litigants, as well as how state and county court personnel can meet the requirements of Title VI. Abel also provides practical guidelines for court interpreter programs and suggestions for how advocates can improve state and county courts for their LEP clients.

Also in the May-June 2010 issue, Michael Mulé’s “Language Access 101” is a valuable resource for any legal aid attorney struggling with how to effectively and ethically represent LEP clients. Mulé outlines the responsibilities that legal aid attorneys have towards their LEP clients and provides pragmatic approaches for how they can assess the size and needs of their LEP populations. Lastly, in “How Effective Is Machine Translation of Legal Information?” Mulé and Claudia Johnson scrutinize one frequently-discussed solution to the problems faced by LEP clients: machine-translation. Their nuanced discussion of these services’ strengths and limitations suggests that for LEP clients such as Mercedes Cruz, progress towards full compliance with Title VI depends on the cultivation and pooling of language resources rather than a dependence on machine translation.

 

All Together Now: Partnering with Pro Bono Counsel to Advance Social Justice

HandshakeI am a dyed-in-the-wool legal aid lawyer. Of my 14 years practicing law, I spent only one year in private practice. And although I appreciate to this day many of the skills I gained, I scurried back to legal aid faster than you can say “pay cut.” I love it all--the challenges, the many underdog days, and the deep satisfaction found from helping others in need. I am humbled by my colleagues and their dedication and even more humbled by my clients and their willingness to stand up for what is right.

Over the last six years, my poverty law practice has evolved. As the cases we have taken on got bigger and more complex, so too did the challenges of bringing and financing this litigation. Partnering with law firms enabled us to advance our advocacy agenda without the worry over costs that frequently accompany litigation. Those pro bono partnerships also enabled us to be better lawyers and advocates as we worked alongside seasoned and exceptionally skilled lawyers.

The Shriver Center’s experience with the Chicago, Illinois, office of Reed Smith is a great example of a successful pro bono partnership. Reed Smith attorneys have worked with us on three major housing and civil rights cases. By working together to build each case and share responsibilities, we were able to accomplish a lot of good and advance social justice along the way.

But we also had a lot of fun. I only hope that Reed Smith found as much joy working on these cases as we did: when a group of clients, well into their 80s and 90s, protested at the offices of one of the potential defendants and forced from them an on-the-spot apology; when the federal law changed (to our clients’ benefit) on the eve of a Seventh Circuit brief being due; and when we got to tell a client that their actions not only changed the law but helped thousands of people like them.

That is the joy of law and of helping people in need that you do not soon forget. Our many thanks to the pro bono attorneys at Reed Smith for their partnership, and to all of the law firms and lawyers who rise to this important challenge.

An "Explosion" of Poverty Expected in the Gulf Coast: Advocates Prepare

Among the many uncertainties relating to the fallout of the BP oil spill in April off the Louisiana coast, there is at least one certainty: poor people and communities will be especially hard hit—their livelihoods, their homes, and their health, to name a few.  An “explosion” of poverty is expected in the Gulf Coast area, according to one advocate participating in the June 22, 2010, Clearinghouse Review readers’ conference call, on which 19 advocates representing nine states discussed the oil spill, state budget cuts, foreclosures, health care reform, and other legal topics.

Legal aid advocates and volunteers in the Gulf Coast communities are gearing up to assist clients with employment, housing, tax, and language access issues and claims. For example, they are compiling helpful resources on LawHelp, Louisiana’s online guide to free legal help, administered by Southeast Louisiana Legal Services, and on ProBonoNet. Already overloaded and underfunded, legal aid programs in the Gulf Coast are working together to figure out what their role is in the aftermath of this unnatural disaster and how to most effectively assist the expected surge of clients.

Conference call participants from other parts of the country discussed how state budget cuts are affecting their clients, ideas for establishing and preserving utility assistance for poor people, questions about working with the Social Security Administration on overpayment issues, the need for achieving relief in mold cases, and the challenges of accessing benefits in an era of web-based applications and declining access to public libraries’ computers, among others. Which of these topics would you most like to see covered in Clearinghouse Review? Vote now in a new two-question survey.

The discussion was part of a regular conference call series hosted by Clearinghouse Review: Journal of Poverty Law and Policy, a publication of the Sargent Shriver National Center on Poverty Law. Want to share your advocacy stories and article suggestions? Clearinghouse Review will host another conference call in October, tentatively scheduled for October 26. For more information, contact Shriver Center staff attorney–legal editor Catherine Dorn Schreiber.

Legal Needs of Low-Income Lesbian, Gay, Bisexual, and Transgender Clients

Gay Pride FlagData suggest that poverty rates in the lesbian, gay, bisexual, and transgendered (LGBT) community may be higher than in the general population. A recent study published by the Williams Institute found that 24% of lesbians and bisexual women were poor compared with only 19% of heterosexual women. Moreover, poverty rates for children of same-sex couples were twice as high as those for children of married couples. Another study found that 23% of the transgender community in California lived below the poverty level.

There are many reasons that LGBT people experience more poverty than their heterosexual counterparts. LGBT people sometimes lose the support of their families when they come out. They are more vulnerable to employment discrimination than the general population. And, because of their lack of access to marriage in most states, LGBT people may face difficulties accessing health insurance and other necessary benefits.

What is, and what should be, the response of legal services advocates? Health care, housing, retirement, and estate planning are all areas in which low-income LBGT older adults may need advocates to help them tailor the law to their particular needs. Medicare-participating long-term nursing facilities much comply with “quality-of-life” requirements, and Section 8 housing can be used to secure long-term housing for LGBT partners. Advocates can help LGBT older adults arrange their affairs and name beneficiaries to reflect these individuals’ wishes and protect their partners.

Advocates interested in learning more should check out the March-April issue of Clearinghouse Review, which features two articles on meeting the legal needs of LGBT clients.

Meeting the Legal Needs of Military Veterans, Servicemembers, and Their Families

Today we are seeing the needs of military families being raised to level of national importance. First Lady Michelle Obama, along with Dr. Jill Biden, has made improving the lives of military families her signature issue, and this is reflected in a proposed expansion in funding for military support programs in the president’s 2011 budget. Improving the focus on military family issues is welcome, as the burdens placed on the men and women of our armed forces have increased throughout the past decade, where active-duty servicemembers have become accustomed to frequent and lengthy deployments overseas. This trend has imposed great challenges on our military families, which may not end upon the servicemember’s discharge into our already-sizable veteran population. These include, unfortunately, a full range of legal issues, many of which are unique to those currently and formerly serving in the armed forces.

As these legal needs have grown, they have been met with many local, state, and national initiatives enabling attorneys to step forward to deliver much-needed legal help to active-duty sevicemembers and veterans. And where military culture had historically adopted a “we take care of our own” attitude when it came to providing legal services to its members, the military legal assistance establishment is now grateful for the support of and collaboration with the private bar to act as a “force multiplier” to extend the range of services and legal counsel available to servicemembers, often delivered at a reduced cost or free-of-charge by the civilian attorneys.

There is much that a private bar attorney can to do aid our current and former servicemembers. Many military families encounter civil legal needs, such as:

  • landlord/tenant matters, including deposit recovery problems related to Servicemember Civil Relief Act (SCRA) lease terminations;
  • family law issues, especially child custody disputes arising around overseas deployment;
  • credit and lending problems, which can include payday loans, auto sales contracts, and interest rate reductions under the SCRA;
  • employment issues, particularly for National Guard members and Reservists needing to enforce reemployment rights;
  • guardianship needs, or estate matters on behalf of families of deceased servicemembers; and
  • securing vitally-needed benefits for veterans from the Department of Veterans Affairs.

In the fall of 2009, the Shriver Center published a special issue of Clearinghouse Review featuring articles written by military and civilian attorneys on these and other topics affecting veterans, servicemembers, and their families. This issue of the Review is an important tool supporting work done to expand access to justice for current and former military members, and it is available online for subscribers; nonsubscribers may purchase individual articles, or order the entire special issue. Any military legal assistance attorney may have free access to the issue through the American Bar Association Military Pro Bono Project website. Attorneys, whether in legal aid, pro bono, or private practice, can do much to help military families, and this issue of the Review illuminates how such assistance can be provided.

For more discussion on these issues and the important role that can be played by members of the civilian bar, please join our Shriver Center Dialogue on Accessing Justice: Military Veterans, Servicemembers, and Their Families, Friday, February 26, 2010, at DLA Piper 203 North LaSalle Street, Chicago, IL 60601, at 8:15 a.m. Presenters will include advocates working to meet the legal needs of this important population. We hope you will join us to find out how you can get involved with giving back to those who have sacrificed so much for us.
 

Economic Downturn, Health Care, Budget Crises: Where's a Clearinghouse Review Editor to Start?

Federal and state governments are overwhelmed solving the unprecedented combination of problems caused by the distressed economy, health care reform, and crises in state and federal budgets. Even the experts cannot easily answer the complicated and overlapping questions raised by these difficulties. These same problems intensify the hardships of people already struggling in poverty. They lead to more people going hungry, and losing their jobs or homes.

Clearinghouse Review editors are looking to lighten the load of advocates whose hands are full helping struggling families and seeking social and economic justice for their client communities. For 2010, we plan to publish articles that will assist advocates in solving client problems related to income, jobs, housing, budget crises, and racial justice. Here are a few examples.

Pursuant to the settlement of a nationwide class action, the income of thousands of older adults and people with disabilities may be increased by more than $500 million in retroactive social security benefits.  Attorneys from the National Senior Citizens Law Center  describe the settlement in a recent Clearinghouse Review article. This article is part of a major outreach effort to ensure that eligible clients receive the benefits that they were illegally denied under the Social Security Administration’s “fleeing felon” policy. 

As foreclosures continue and more people lose their homes, advocates across the country are experimenting with different ways to help their clients. In two recent articles, one resourceful author makes the case for a right to counsel in foreclosure actions. In another article, authors from California approach advocacy from a different angle. They recommend that advocates explore the importance of “frames”--the stories and explanations embedded in our thought patterns about the way society and the world work--in how they communicate about the issues that matter to their clients and in their advocacy. Giving specific examples of what language to use and what to avoid, they present the theory and application of framing as an advocacy tool, in particular in race equity advocacy.

We are interested in your feedback on these article topics and your ideas for other topics we might cover this year. I invite you to connect with us by:

Through Clearinghouse Review we hope to offer innovative and effective legal strategies in representing low-income people and their communities. The more we hear and learn from you, the better we are able to plan content that is meaningful and relevant to your practice.